INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF CAESAR V. TRINIDAD AND TOBAGO
JUDGMENT OF MARCH 11, 2005
In the Case of Caesar,
the Inter-American Court of Human Rights (hereinafter "the Court", "the Inter-
American Court", or "the Tribunal"), composed of the following judges:
Sergio García-Ramírez, President;
Alirio Abreu-Burelli, Vice-President;
Oliver Jackman, Judge;
Antônio A. Cançado-Trindade, Judge;
Cecilia Medina-Quiroga, Judge;
Manuel E. Ventura-Robles, Judge; and
Diego García-Sayán, Judge;
Also present,
Pablo Saavedra-Alessandri, Secretary; and
Emilia Segares-Rodríguez, Deputy Secretary;
Pursuant to Articles 29, 31, 56, and 58 of the Rules of Procedure of the Court
(hereinafter "the Rules of Procedure" or "the Rules"),1 delivers the present
Judgment.

I
INTRODUCTION OF THE CASE

1. The present Case was submitted to the Court by the Inter-American
Commission on Human Rights (hereinafter "the Commission" or "the Inter-American
Commission") against the State of Trinidad and Tobago (hereinafter "the State" or "Trinidad and Tobago") on February 26, 2003, originating from the petition No.
12.147, which was received at the Commission's Secretariat on May 13, 1999.

2. The Commission filed the Application pursuant to Article 61 of the American
Convention, for the Court to decide whether the State violated “Mr. [Winston]
Caesar’s right to humane treatment under Articles 5(1) and 5(2) of the Convention,
his right to be tried within a reasonable time under Article 8(1) of the Convention,
and his right to judicial protection under Article 25 of the Convention, all in
conjunction with violations of Article 1(1) of the Convention. In addition, the
Commission argue[d] that the State, by failing to provide for the right to be tried
within a reasonable time under its domestic law and by authorizing a form of
punishment that is incompatible with the right to humane treatment, is responsible
for violating its obligation[…] under Article 2 of the Convention to give domestic
legal effect[…] to the rights guaranteed under Articles 5(1), 5(2), 7(5) and 8(1) of
the Convention”. The Commission also requested that the Court order the State to
adopt various pecuniary and non-pecuniary measures of reparation.

3. According to the Application of the Commission, the current legislation of
Trinidad and Tobago allows for the imposition of corporal punishment. Under the
Corporal Punishment Act (Offenders Over Sixteen) of 1953 (hereinafter “Corporal
Punishment Act”), a court may order any male offender above the age of sixteen
years to be struck, or flogged, with an object called a “cat-o-nine tails”, in addition to
any other punishment to which he is liable, when convicted of certain crimes2. That
same law provides that a sentence of flogging shall be carried out as soon as may be
practicable and in no case after the expiration of six months from the passing of the
decision. The alleged victim in this case, Mr. Winston Caesar (hereinafter "Mr.
Caesar" or "the alleged victim"), was convicted before the High Court of Trinidad and
Tobago of the offense of attempted rape and was sentenced to serve 20 years in a
penitentiary with hard labour and to receive 15 strokes of the “cat-o-nine tails”. The
Court of Appeal of Trinidad and Tobago confirmed his conviction and sentence and,
23 months after the final confirmation of his sentence, Mr. Caesar´s punishment of
flogging was carried out.

4. Moreover, the Commission contends that, given the nature of the violations
for which the State should be held responsible, Trinidad and Tobago must provide
Mr. Caesar with an effective remedy, which includes compensation for the moral
damage suffered by him. In addition, the Commission seeks an order requiring the
State to adopt legislative and other measures as necessary to give effect to the
right to a trial within a reasonable time, to abrogate the punishment of flogging as
provided under its Corporal Punishment Act, and to ensure that conditions of
detention in the State’s prisons satisfy the minimum standards of humane
treatment provided for under the Convention.

II
JURISDICTION OF THE COURT

5. Trinidad and Tobago deposited its instrument of ratification of the American
Convention on Human Rights (hereinafter "the Convention" or "the American Convention") on May 28, 1991. On that same day, the State recognised the
compulsory jurisdiction of the Court.

6. On May 26, 1998, Trinidad and Tobago denounced the Convention and the
denunciation became effective one year later, as of May 26, 1999, pursuant to Article
78 of the Convention. According to Article 78 of the Convention, a denunciation
will not release the denouncing State from its obligations under the
Convention with respect to acts of that State occurring prior to the effective
date of the denunciation that may constitute a violation of the Convention.

7. Moreover, in the Hilaire, Constantine, Benjamin and others Case3, the Court
held in its judgments on preliminary objections that:

[…] Trinidad and Tobago cannot prevail in the limitation included in its instrument of
acceptance of the optional clause of the mandatory jurisdiction of the Inter-American
Court of Human Rights in virtue of what has been established in Article 62 of the
American Convention, because this limitation is incompatible with the object and
purpose of the Convention.

8. Notwithstanding the fact that the Inter-American Court is fully competent to
hear the present Case, the State did not participate in the proceedings before this
Tribunal (infra paras. 24, 30, 34 and 39). Nevertheless, the Court, as is the case
with any other international organ with jurisdictional functions, has the inherent
authority to determine the scope of its own competence (compétence de la
compétence).4

9. In interpreting the American Convention in accordance with the general rules
of treaty interpretation enshrined in Article 31(1) of the Vienna Convention on the
Law of Treaties, bearing in mind the object and purpose of the American Convention,
this Tribunal, in the exercise of the authority conferred on it by Article 62(3) of the
American Convention, must act in a manner that preserves the integrity of the
provisions of Article 62(1) of the Convention. It would be unacceptable to
subordinate these provisions to restrictions that would render inoperative the Court’s
jurisdictional role, and consequently, the human rights protection system established
in the Convention.5

10. Furthermore, the Court considers relevant to recall a recent case law with
respect to the its ratione temporis competence6:

[…] The Court cannot exercise its contentious jurisdiction to apply the Convention
and declare that its provisions have been violated when the alleged facts or the conduct
of the defendant State which might involve international responsibility precede
recognition of the Court’s jurisdiction.

[…] However, in case of a continuing or permanent violation, whose
commencement occurred before the defendant State had recognized the Court’s
contentious jurisdiction and which persists even after this recognition, the Court is
competent to consider the actions and omissions that occurred after the recognition of
its jurisdiction and the effects of the violations.

11. With the exception of certain matters concerning the criminal proceedings,
most of the facts alleged in the Application in the present case occurred before the
State´s denunciation of the Convention came into effect. Taking into account the
considerations set out in the preceding paragraphs, the Court reaffirms its
competence, according to the terms of Articles 62(3) and 78(2) of the Convention,
to hear the present Case and render judgment.

III
PROCEEDINGS BEFORE THE COMMISSION

12. On May 13, 1999, the British law firm Lovells filed a petition before the Inter-
American Commission.

13. On October 10, 2001, during its 113th Regular Session, the Commission
adopted Report No. 88/01, in which it found the claims in Mr. Caesar's petition to be
admissible, and decided to continue with consideration of the merits of the case.

14. On October 10, 2002, during its 116th Regular Session, the Commission
approved Report Nº 65/02 on the merits of the case, in which it concluded that:
The State is responsible for violating Mr. Caesar’s right to humane treatment under
Articles 5(1) and 5(2) of the Convention, his right to be tried within a reasonable time
under Article 8(1) of the Convention, and his right to judicial protection under Article 25
of the Convention, all in conjunction with violations of Article 1(1) of the Convention. In
addition, the Commission finds that the State, by failing to provide for the right to be
tried within a reasonable time under its domestic law and by authorizing a form of
punishment that is incompatible with the right to humane treatment, is responsible for
violating its obligations under Article 2 of the Convention to give domestic legal effects
to the rights guaranteed under Articles 5(1), 5(2), 7(5) and 8(1) of the Convention.
Based upon the information and evidence presented, the Commission did not find a
violation of Mr. Caesar’s right to legal assistance under Article 8(2) of the Convention.

The Commission recommended that the State:

1. Grant Winston Caesar with an effective remedy, which includes compensation;

2. Adopt such legislative or other measures as may be necessary to give effect to the
right to a trial within a reasonable time;

3. Adopt such legislative or other measures as may be necessary to abrogate the
punishment of flogging as provided for under its Corporal Punishment (Offenders
Over Sixteen) Act of 1953

4. Adopt such legislative or other measures as may be necessary to ensure that Mr.
Caesar’s conditions of detention comply with the standards of humane treatment
mandated by article 5 of the Convention.

15. On November 27, 2002, the Commission transmitted Report Nº 65/02 to the
State, with the request that the State report on the measures adopted to comply
with the recommendations contained therein, within two months from the date of
transmission. By a communication of the same date, the Commission informed the
Petitioners that it had approved Report Nº 65/02, and requested that they provide,
within one month, the information referred to in Article 43(3) of its Rules of
Procedure, regarding their views with respect to a possible referral of the case to the
Inter-American Court.

16. On December 31, 2002, the Petitioners submitted their response to the
Commission’s communication of November 27, 2002, indicating that “referral to the
Court is appropriate in this case, as the Court represents the only opportunity for Mr.
Caesar to obtain a real and effective remedy for the violations of his human rights”.

17. On February 26, 2003, the Commission decided to submit the present case to
the Court, as “the State did not provide [it] with a response to its merits Report”.

IV
PROCEEDINGS BEFORE THE COURT

18. On February 26, 2003, the Commission filed before the Court the Application
in the present case (supra para. 1).

20. On March 20, 2003, the Secretariat of the Court (hereinafter “the
Secretariat”), following a preliminary examination of the Application by the President
of the Court (hereinafter “the President”), notified it with its annexes to the State
and informed it regarding the time limits to answer the Application and to appoint its
representation for the proceeding. On the instructions of the President, the
Secretariat also advised the State of its right to designate a Judge ad hoc to
participate in the consideration of the case.

21. On March 24, 2003, in accordance with articles 35(1)(e) and (d) of the Rules
of Procedure, the Secretariat notified the Application to the representatives of the
alleged victim (hereinafter “the representatives”). Mrs. Jon Holland, Andrea Monks,
Yasmin Walijje, Yvonne Gray and Peter Carter have represented Mr. Caesar in the
proceedings before the Court.

22. The State failed to designate either agents or a Judge ad hoc before the time
limit expired on April 20, 2003.

23. The representatives failed to submit their written brief containing pleadings,
motions and evidence, before the time limit expired on April 24, 2003, as provided
under the terms of Article 35.4 of the Rules of Procedure in force at the time.

24. The State failed to submit its answer to the Application before the time limit
expired on May 20, 2003, as provided under the terms of Article 37.1 of the Rules of
Procedures in force at the time.

25. On April 12, 2004, the non-governmental organisations Harvard Law Student
Advocates for Human Rights and Global Justice Centre submitted an amici curiae
brief in the present case.

26. On September 6, 2004, the non-governmental organisation Interights
submitted an amicus curiae brief in the present case.

27. On October 20, 2004, the President issued an Order, pursuant to article 47(3)
of the Rules of Procedure, requiring Mr. Caesar, a witness called by the Inter-
American Commission, and Desmond Allum and Andrew Coyle, expert witnesses also
called by the Inter-American Commission, to file their respective affidavits on the
time limit of seven days, for transmission to the State and the representatives for
their observations. The President also summoned the parties to present their final
oral arguments on merits, possible reparations and costs at a public hearing to be
held on November 15, 2004, with final written briefs to be filed no later than
December 16, 2004, and ordered the appearance of Dr. Robert Ferris, an expert
witness called by the Inter-American Commission.

28. On November 3, 2004, the Commission submitted the affidavits of Winston
Caesar, Desmond Allum, Andrew Coyle and Robert Ferris. The State and the
representatives did not submit any observations.

29. On November 15, 2004, at the public hearing on the merits and possible
reparations and costs, the Court heard the expert testimony of Dr. Ferris, called by
the Inter-American Commission, as well as the final oral arguments on the merits,
possible reparations and costs of the Commission and the representatives.

30. The State did not appear in the public hearing. Accordingly, the hearing was
held pursuant to Article 27 of the Rules of Procedure, which was read by the
Secretary at the beginning of the hearing and states the following:
Article 27. Default Procedure

1. When a party fails to appear in or continue with a case, the Court shall, on its
own motion, take such measures as may be necessary to complete the consideration of
the case.

2. When a party enters a case at a later stage of the proceedings, it shall take up
the proceedings at that stage.

31. During the public hearing, the representatives submitted a document titled
“Skeleton Argument on behalf of [Mr.] Winston Caesar” and the Commission
submitted a document titled “Oral Submissions […] on merits and possible
reparations and costs”, as well as Mr. Caesar’s medical records from the Port of
Spain Hospital, as an exhibit to the October 5, 2004 affidavit of Dr. Robert Ferris;
and four exhibits to the July 13, 2004 affidavit of Mr. Andrew Coyle.

32. On December 6, 2004, following the instructions of the President and in
accordance with Article 45(2) of the Rules of Procedure, the Secretariat required
Trinidad and Tobago to submit, no later than January 15, 2005, all of Mr. Winston
Caesar’s medical records from the prisons in which he was incarcerated and where
he also received medical treatment, including those relating to his medical condition
and treatment prior to and following the execution of his sentence of corporal
punishment. The abovementioned documents were not submitted to the Court.

33. On December 13 and 16, 2004, the representatives and the Commission,
respectively, presented their final written arguments on merits and possible
reparations and costs. The State did not present any final written arguments.

V
PREVIOUS CONSIDERATIONS

34. The State did not appear in the proceedings before the Commission nor
before the Court. Nevertheless, the Court has, of its own motion, taken the
necessary measures to complete consideration of the case and, having evaluated the
arguments and the evidence tendered during the proceedings by the Inter-American
Commission and by the representatives, now delivers its judgment.

35. In its final written arguments the Commission invoked Article 38(2) of the
Court’s Rules of Procedure, and the Court deems it pertinent to examine the scope
and effect of its relevance to the circumstances of the present case.

36. Article 38(2) of the Rules of Procedure provides:
In its answer, the respondent must state whether it accepts the facts and claims or
whether it contradicts them, and the Court may consider accepted those facts that have
not been expressly denied and the claims that have not been expressly contested.

37. The Court has held in previous cases that when a State does not specifically
contest the Application, the facts on which it remains silent are presumed to be true,
provided that the evidence before the Court is found to be consistent with those
facts.7 In recent cases in which the State has presented no defense and has failed to
appear at the hearings, the Court has ruled:

[…] that procedural inactivity does not give rise to a specific sanction against the parties,
nor does it affect the development of the proceeding; but, it may eventually prejudice
them, if they take the decision not to exercise fully their right to defense or to execute
the appropriate procedural actions that are in their interests, in accordance with the audi
alteram partem principle.

[…] International jurisprudence has recognized that the absence of one of the parties at
any stage of the case, does not affect the validity of the judgment;8 therefore, pursuant
to Article 68(1) of the Convention, Peru’s obligation to comply with this Court’s
judgment in this case is in force.9

38. Pursuant to Article 38(2) of the Rules of Procedure, the Court is authorized to
consider as established those facts that have not been expressly denied and those
claims that have not been expressly contested; nevertheless, as master of its own
jurisdiction (supra para. 8 and 11) and in exercise of the authority granted by Article
55 of the Rules of Procedure, the Court is at liberty to assess the facts, alone or in
conjunction with other elements from the evidence available. It remains the case
that the State’s inactivity before an international human rights tribunal not only may
eventually work to its detriment but is contrary to the object, purpose and spirit of
the American Convention and of the collective enforcement mechanism enshrined
therein.

39. It should be emphasized that in this case the State failed to discharge its
procedural responsibility to submit evidence in the course of the procedural stages
set out in Article 44 of the Rules of Procedure (supra para. 24). In consequence, the
Court deems it appropriate to establish the proven facts of the instant case, taking
into account, in addition to the aforementioned silence of the State, other elements
that may assist it in establishing the truth of the facts, exercising its responsibility to
protect human rights and applying, to this end, the pertinent provisions of the
American Convention and of general international law.

VI
EVIDENCE

40. Before turning to the analysis of the evidence received, in this chapter the
Court, pursuant to articles 44 and 45 of the Rules of Procedure, will make reference
to certain general considerations applicable to the specific case, the majority of
which have been previously expounded in the jurisprudence of this Tribunal.

41. The principle of the presence of parties to a dispute applies to evidentiary
matters, and it involves respecting the parties’ right to defense. This principle is
contained in article 44 of the Rules of Procedure, regarding the opportunity in which
the evidence must be submitted, in order to seek equality among the parties10.

42. It is well-settled law and practice that international procedures relating to the
admission and evaluation of evidence are not subject to the same formalities as
domestic judicial procedures. This principle is especially applicable to international
human rights tribunals, which enjoy greater flexibility in assessing the evidence
presented before them, in accordance with the rules of logic and on the basis of
experience. The admission of evidence must be carried out with careful attention to
the circumstances of the particular case, while bearing in mind the limits imposed by
due respect for judicial certainty and procedural equality as between the parties.11 43. Therefore, the Court will proceed to examine and evaluate all the elements
that comprise the corpus of evidence in the case.

a) DOCUMENTARY EVIDENCE

44. Among the documentary evidence presented by the parties, the Commission
submitted the alleged victim's declaration and the reports and exhibits of the expert
witnesses (affidavits) pursuant to the President's Order of October 20, 2004 (supra
para. 27). The Court deems pertinent to summarize these affidavits.
a) Testimony of Mr. Winston Caesar

In his affidavit, Mr. Winston Caesar, the alleged victim of the violations
pleaded in the instant case, deposed as follows:
He described the conditions of his incarceration at the Golden Grove Prision,
and at the Carrera Prison where he shared a cell with four men, and slept on
the floor on a thin mat. The cell was hot and had no ventilation, and did not
have toilet facilities. At the Maximum Security Prison the water is turned on
for only half an hour in the mornings and a afternoons. He is allowed to go out
in the yard for about an hour every morning and afternoon during the week;
on the weekends, he is allowed to go into the yard only in the morning. Since
entering prison Mr. Caesar has lost most of his teeth and has not received any
dental treatment. He has also suffered from hemorrhoids; he has had
surgery but still has symptoms of the malady and thus requires another
operation. In 1998 he discovered that he has a cyst in his groin area, which
will also require surgery.
He knew that floggings take place at the Carrera Prison two or three times a
year. On three occassions, at least, he was taken to another cell block to
witness the infliction of similar punishment on four other men (infra para.
77).

Mr. Caesar described the way the flogging was carried out on February 5,
1998 (infra para. 76).

b) Expert Report of Mr. Desmond Allum, S.C.
(Mr. Allum is a Senior Counsel of the Trinidad and Tobago Bar, currently
President of the Criminal Bar Association, and a former President of the Bar
Association of Trinidad and Tobago).
The expert witness gave details of the history of the Corporal Punishment Act
pointing out, inter alia, that, as amended in 1994, that Act provides that the
sentence of flogging shall be carried out within six months of conviction,
except when an appeal has been filed. Moreover, he referred to the
application of the “savings clause” in the Constitution of Trinidad and Tobago
(infra para. 115).
He stated that the conditions in Trinidad and Tobago's prisons are
unsatisfactory, characterised by overcrowding, lack of proper light and
ventilation, inadequate hygiene, and the absence of satisfactory medical and
dental services.

c) Expert Report of Dr. Andrew Coyle

(Professor Coyle is professor of Prison Studies at the School of Law, King´s
College, University of London)

Dr. Coyle referred to international law and standards with respect to the
application of corporal punishment, and to the conditions of detention in the
State’s prisons.

d) Testimony of Dr. Robert Ferris
(Consultant Forensic Psychiatrist and Clinical Director of Forensic and Secure
Services for the Oxfordshire Mental Healthcare Trust)
Dr. Ferris interviewed Mr. Caesar in the Maximum Security Prison of Trinidad
and Tobago.
The expert witness expressed that Mr. Caesar does not suffer from any
specific mental illness but, during his current period of imprisonment, he has
suffered from depression and anxiety. Mr. Caesar experienced the suffering
to be expected in a person anticipating a painful and brutal form of physical
punishment. Furthermore, the intense mental suffering resulting from the
corporal punishment would have been exacerbated by the long delay in its
being carried out, and by the repeated “false starts” of the execution of the
punishment. Regarding the punishment itself, Mr. Caesar suffered such
intense fear, pain and humiliation that he fainted. The corporal punishment
caused the alleged victim bruising and possible lacerations to his back but he
does not show any scarring. After being flogged, Mr. Caesar was admitted to
the infirmary, where he was treated with analgesic medication.
Mr. Caesar suffered from psychological consequences after his corporal
punishment, such as post-traumatic stress symptoms, including depressed
mood, disturbing recollections, and a sensation of something hitting his back,
which causes his shoulder to twitch involuntarily.
There is a discrepancy on the timing of the hemorrhoid operation in Mr.
Caesar's account (December 1997) and that of the medical records (January
1997). Moreover, Mr. Caesar was admitted to a hospital on December 27,
1997 for a day, and received a diagnosis of ureteric colic.

b) EXPERT EVIDENCE

45. During the public hearing (supra para. 29), the Court heard oral expert
testimony from Dr. Ferris proposed by the Inter-American Commission. His
testimony and affidavit are summarized in the previous section of this chapter (supra
para. 44 d).
*
c) ASSESSMENT OF THE EVIDENCE

46. In this case, as in others,12 the Court admits the probative value of those
documents presented in timely fashion by the parties, the authenticity of which was
not challenged or questioned.

47. With respect to the declaration rendered by the alleged victim (supra para.
44(a)), the Court admits it insofar as it is in accordance with the Order of October
20, 2004 (supra para. 27). In this regard, because Mr. Caesar has a direct interest
in the case, that declaration cannot be evaluated in isolation, but rather within the
context of the entire corpus of evidence submitted in the proceeding. Thus, as it has
held in similar cases, the Court considers that declaration to be of assistance
inasmuch as it can provide information of relevance both as to the merits and as to
reparations.13

48. Regarding the expert testimony given during the public hearing by Robert
Ferris, as well as the affidavits and accompanying exhibits presented by experts
Desmond Allum, Andrew Coyle and Robert Ferris (supra para. 28), the Court rules
that they are admissible, insofar as they are in conformity with the Order of October
20, 2004.

VII
PROVEN FACTS

49. The Court considers that the following facts have been proven:
Regarding Winston Caesar's criminal proceedings

49(1). On November 11, 1983, Mr. Winston Caesar was initially
arrested as the suspect in connection with a rape that was alleged to have
taken place in Trinidad on November 8, 1983. On November 16, 1983, he
was released on bail. Between 1985 and 1986 committal proceedings took
place in the Port of Spain Magistrate's 4th Court, which ordered him to stand
trial on February 21, 1986.

49(2). On September 10, 1991, he was arrested and taken into
custody for failing to appear in court. During his trial he was held at Port of
Spain prison.

49(3). The trial was held in January 1992, before Mr. Justice
Dayalsingh, in the High Court of Trinidad and Tobago. On January 10, 1992,
Mr. Caesar was convicted of attempted rape under Trinidad and Tobago’s
Offences Against the Person Act. He was sentenced to serve 20 years in a
penitentiary with hard labor and to receive 15 strokes of the cat-o-nine tails.
That same day Mr. Caesar signed a Notice of Appeal and remained in
detention.

49(4). On November 26, 1993 Mr. Caesar's attorney filed an
application for leave to appeal at the Court of Appeal of Trinidad and Tobago,
challenging the legal basis for the ruling. On February 28, 1996, the Court of
Appeal of Trinidad and Tobago dismissed Mr. Caesar’s application for leave to
appeal apparently without giving reasons, and confirmed the conviction and
sentence.

49(5). A counsel in Britain was asked by Mr. Caesar’s lawyers to
consider whether there were reasonable grounds of appeal to the Privy
Council in this case. On November 2, 1998, in his “note for instructing
solicitors”, counsel indicated that an application for Special Leave to Appeal to
the Privy Council was unlikely to succeed. In considering whether the delay
of over 8 years between Mr. Caesar’s arrest and trial was so great as to
amount to a denial of justice, and thus an infringement of his constitutional
rights, counsel was of the opinion that although the delay was “very great”
and might be imputed to the State, he nevertheless judged as minimal the
degree of risk that the miscarriage of justice had been caused by the delay.
Finally, the counsel considered that, although such delay was a point on
which Mr. Caesar might have applied to the High Court of Trinidad and
Tobago, he discounted the chances of success at the Privy Council.

Regarding the relevant law in Trinidad and Tobago

49(6). There are two principal laws that authorize the use of corporal
punishment in Trinidad and Tobago. One of them is the Corporal Punishment
Act (Offenders Over Eighteen). The terms of this legislation provide for the
application of corporal punishment for certain crimes by, inter alia, the
following methods: whipping with a rod of tamarind or similar switch and
flogging with strokes of an object called a “cat-o-nine tails”.

2. Any male offender, above the age of sixteen years, on being convicted
before the High Court of any of the offences mentioned in the Schedule, may be
ordered by the Court to be flogged in addition to any other punishment to
which he is liable.

6. A sentence of flogging shall be carried out as soon as may be practicable and
shall in no case be carried out after the expiration of six months from the
passing of the sentence.

7. The instrument to be used for carrying out a sentence of flogging shall be
the ordinary cat-o-nine tails and for carrying out a sentence of whipping a rod
of tamarind, birch or other switches or in either case such other instrument as
the President may from time to time approve.

49(8). The “cat-o-nine tails” consists of a plaited rope instrument of
nine knotted thongs of cotton cord, each of which is approximately 30 inches
long and less than one quarter of an inch in diameter. The thongs are
attached to a handle. The nine cotton thongs are lashed across the back of
the subject, between the shoulders and the lower area of the spine.

49(9). The Corporal Punishment (Offenders Over Sixteen) Act of 1953
was amended in 1994 and in 2000. The 1994 amendment provided for the
suspension of the original six-month time limit for the carrying out of a
sentence of corporal punishment while an appeal is pending. The 2000
amendment provides that corporal punishment may be administered only to
persons over the age of 18.

49(10). Sections 4 a) and b), 5 b), and 6(1) and (3) of the Constitution
of Trinidad and Tobago provide as follows:

4. It is hereby recognized and declared that in Trinidad and Tobago there
have existed and shall continue to exist […]:
a) the right of the individual to life, liberty, security of the
person and enjoyment of property and the right no to be
deprived thereof except by due process of law;
b) the right of the individual to equality before the law
and the protection of the law;

5. (2) […The] Parliament may not: […]
b) impose or authorize the imposition of cruel and unusual
treatment or punishment […]
c) deprive a person who has been arrested or detainediii.
of the right to be brought promptly before an
appropriate judicial authority; […]
e) deprive a person of the right to a fair hearing in accordance
with the principles of fundamental justice for the determination
of his rights and obligations; […]

6. (1) Nothing in sections 4 and 5 shall invalidate
a) an existing law […]
(3) In this section- […]
“existing law” means a law that had effect as part of the law of Trinidad
and Tobago immediately before the commencement of this Constitution,
and includes any enactment referred to in Subsection (1) […]

49(11). Section 6 of the Constitution of the Republic of Trinidad and
Tobago precludes individuals from challenging, under Sections 4 and 5 of the
Constitution, all laws or acts carried out pursuant to any law in force in
Trinidad and Tobago before 1976, the year the Constitution entered into
force.

49(12). The Constitution of Trinidad and Tobago does not provide,
among its prescribed fundamental rights and freedoms, the right to a trial
within a reasonable time.

Regarding Mr. Caesar's detention and health conditions

49(13). Mr. Caesar has been incarcerated since September 10, 1991
(supra para. 49(2)) and has served 13 years of his 20-year sentence.

49(14). The prison system in Trinidad and Tobago consists of the
following five prisons: Port of Spain Prison, Golden Grove Prison, Maximum
Security Prison, Carrera Convict Prison and Tobago Prison.

49(15). During the course of his criminal proceedings, Mr. Caesar has
been incarcerated at four of the five prisons in Trinidad and Tobago. After his
arrest in 1991, he was held for a short time at the Port of Spain Prison, and
he was then transferred to the Golden Grove Prison in Arouca, where he
stayed for at least two months. Then he was returned to the Port of Spain
Prison for two months. Subsequently, Mr. Caesar was sent back again to the
Golden Grove Prison, where he remained until his trial in February 1996 when
he was transferred to the Port of Spain Prison. Some time after, he was
transferred to the Golden Grove Prison once again. After his case was
dismissed by the Court of Appeal, he was returned to the Port of Spain Prison,
where he was held for at least two months. He was then sent to the Carrera
Convict Prison, where he was detained until November 1999. Finally, he was
transferred to the Maximum Security Prison, where he remains to date.

49(16). In Golden Grove Prison and in Carrera Convict Prison the
alleged victim shared a cell with 4 or 5 other men and slept on the floor with
a thin mat or on an old piece of carpet. There were no toilet facilities and a
“slop pail” was used by everyone in the cell. There was always a stench of
human waste in the cell, which had little ventilation and was hot.

49(17). At the Maximum Security Prison Mr. Caesar is allowed outside
his prison cell for one hour during the mornings and one hour during the
evenings.

49(18). Since his incarceration, he has suffered serious health problems
that have not been properly treated by the State authorities. His health has
deteriorated over time. He has not received adequate dental treatment while
in prison (he has lost most of his teeth, with only six remaining in his lower
jaw). Subsequent to incarceration, Mr. Caesar developed chronic hemorrhoids
from which he continues to suffer, and he has had a cyst in his testicles since
1998.

49(19). Mr. Caesar did not receive timely treatment with respect to his
hemorrhoid condition. In 1992 a doctor recommended that he undergo
surgery for his hemorrhoids. The procedure was postponed at least twice
and, during the delay, his condition worsened. The surgery finally took place
at the end of January, 1997. At the present time he continues to suffer and
bleed heavily because of this condition.

49(20). On December 27, 1997 Mr. Caesar was admitted to a hospital,
where he stayed for one day, and received a diagnosis of left-sided ureteric
colic, which is a condition causing acute and severe pain in the lower
abdomen.

49(21). In 1998 a doctor advised Mr. Caesar that the cyst on his
testicles required surgery. However, he still has not received that operation.

49(22). Mr. Caesar’s detention conditions are indicative of the general
conditions in Trinidad and Tobago’s prison system.

Regarding Mr. Caesar's Corporal Punishment

49(23). Between April and June of 1996, Mr. Caesar was taken to the
Carrera Convict Prison.

49(24). Prisoners who are sentenced to corporal punishment are usually
held beforehand in the Carrera Convict Prison, with the purpose of executing
the sentence. Corporal punishment is carried out in this prison only at
specified times during the year.

49(25). Mr. Caesar was aware of the times designated for corporal
punishment, and his emotional state deteriorated as these times approached.
Between November of 1996 and the day the flogging was inflicted, Mr. Caesar
was taken on three or four separate occasions to another cell with other
prisoners where they were kept overnight. Each morning the other prisoners
were taken out, one by one, for their corporal punishment to be carried out.
On each occasion, Mr. Caesar observed that the prisoners returned severely
injured, but he was not flogged and rather was returned to his cell without
any explanation.

49(26). On February 5, 1998, Mr. Caesar was subjected to 15 strokes
of the “cat-o-nine tails”, in accordance with his sentence.

49(27). For the administration of the flogging, Mr. Caesar was required
to “lie spreadeagled and naked” and was strapped to a metal contraption,
known in prison as the “Merry Sandy”. His hands and feet were tied tightly to
the metal structure and his head was covered with a sheet. Once strapped to
the iron frame with his back exposed and his clothing removed, Mr. Caesar
was then flogged with the “cat-o-nine tails”.

49(28). The punishment was carried out despite his physical condition
(supra para. 49(18)). There were at least six persons present in the room
where the punishment was carried out, including the Supervisor of Prisons
and the prison medic. Before the flogging, the doctor examined Mr. Caesar’s
blood pressure and other vital signs, and then gave his consent to continue.
During the lashing, Mr. Caesar screamed out in pain, and eventually fainted.
When he regained consciousness, the Superintendent ordered that he be
taken to the infirmary.

49(29). There are no medical records regarding the administration of
Mr. Caesar's corporal punishment.

49(30). Mr. Caesar remained in the infirmary for two months after the
corporal punishment, and did not receive any medical treatment for the
flogging except for orally-administered painkillers. Mr. Caesar continues to
suffer pain in his shoulders.

49(31). As a result of the punishment, Mr. Caesar has suffered
depression, and acute anxiety of sufficient severity to warrant a diagnosis of,
at a minimum, an adjustment disorder.

49(32). Mr. Caesar may have suffered from post-traumatic stress
disorder in the the first or second year after the corporal punishment was
inflicted. Although he continues to have some post-traumatic stress disorder
symptoms, such as depressed mood, intrusive recollections, and a sensation
of something hitting his back, which causes his shoulder to twitch
involuntarily, they do not currently meet the diagnosis of that disorder.

Regarding Mr. Caesar's damages
49(33). The facts of the present case have resulted in the alteration of
Mr. Caesar's physical and psychological condition, causing him damages.

VIII
ARTICLES 5(1) AND 5(2) OF THE AMERICAN CONVENTION
IN CONJUNCTION WITH ARTICLES 1.1 AND 2 OF THE CONVENTION
(RIGHT TO PERSONAL INTEGRITY)
Arguments of the Commission

50. With regard to Article 5 of the American Convention, the Inter-American
Commission argued that:
a) the concept of “inhuman treatment” includes “degrading treatment”;
b) torture is an aggravated form of inhuman treatment perpetrated with the
purpose of obtaining information, confessions or inflicting a punishment. The
essential criterion by which to distinguish torture from other cruel, inhuman
or degrading treatments or punishment consists in the intensity of the
suffering inflicted;
c) many instruments of human rights law or international humanitarian law
expressly prohibit corporal punishment. Furthermore, many international and
national tribunals and authorities have considered that corporal punishment is
incompatible with national and international guarantees against torture and
other inhuman treatment, such as the United Nations Special Rapporteur on
Torture, the Human Rights Committee, the European Court on Human Rights,
the European Commission on Torture and Inhuman or Degrading Treatments
or Punishment Prevention;
d) the use of the “cat-o-nine tails” seeks and achieves the effect of causing
serious physical, mental and psychological suffering, as well as physical
damage to the alleged victim’s body;
e) the waiting period for the implementation of the corporal punishment can
cause serious anguish, stress and mental suffering, including the loss of
intestine and bladder control;

Regarding Mr. Caesar’s corporal punishment
f) by imposing upon Mr. Caesar a sentence of 15 strokes with the “cat-o-nine
tails”, the State violated his right to physical, mental and moral integrity
under Article 5.1 of the Convention, and his right not to be subjected to
torture or other cruel, inhuman or degrading treatment or punishment under
article 5.2 of the Convention;
g) the lapse of time in which Mr. Caesar was waiting for the punishment caused
him great anguish, stress and fear, as he was exposed to the suffering of
other inmates subjected to corporal punishment on four separate occasions,
without knowing whether the punishment might also be inflicted upon him;
h) the State flagrantly violated its own law in executing Mr. Caesar’s punishment
23 months –and not 6 months as provided by law– after sentencing;
i) the suffering caused to Mr. Caesar by the punishment imposed was
aggravated by his age (49 years); by his vulnerable physical condition; by the
treatment he was subjected to before and after the flogging; and by the
manner in which the corporal punishment was carried out;
j) as recognized under international standards governing detainees and
prisoners (such as Principles 2 and 4(b) of the United Nations’ Principles of
Medical Ethics), the availability of competent medical officers to supervise and
treat prisoners is fundamental to the humane treatment of detainees. The
doctor present at the punishment authorized its infliction, notwithstanding his
knowledge of Mr. Caesar’s precarious medical condition, due to the surgery
carried out some weeks before. These circumstances raise serious questions
regarding whether health personnel in the prison have complied with
international law;
k) the fact that the treatment given to Mr. Caesar was imposed as a form of
criminal sanction does not affect the State’s obligation to comply with the
requirements of articles 5.1 and 5.2 of the Convention, as the prohibition of
torture and other cruel, inhuman or degrading punishment or treatment is
absolute;
l) in mantaining a law that permits the infliction of corporal punishment by
flogging with the “cat-o–nine tails”, the State failed to meet the general
obligation to give internal legal effect to the rights under Article 5 of the
Convention, as imposed by Article 2;
m) the punishment of flogging with the “cat-o–nine tails” is, by its very nature,
intention and effects, inconsistent with the standards of humane treatment
provided by Article 5.1 and 5.2 of the Convention and, for that reason, the
State has the obligation under Article 2 of the Convention to abrogate such a
law;Regarding Mr. Caesar’s detention conditions
n) the State is responsible for other violations of the right to humane treatment
under Articles 5.1 and 5.2 of the Convention due to the conditions in which
Mr. Caesar was detained;
o) in the present case the State failed to meet domestic and international
standards on conditions of detention: between January 1991 and November
1999, Mr. Caesar was subjected to the following conditions: an overcrowded
cell, poor sanitation, little light and ventilation, as well as inadequate medical
treatment, all of which violated his right have his physical, mental and moral
integrity respected and constitutes a cruel, inhuman or degrading punishment
or treatment;
p) Mr. Caesar has suffered from serious health problems, which have included
contracting tuberculosis and chronic hemorrhoids. Although he has been
examined by a doctor on several occasions, his medical treatment has been
inadequate or unresponsive and his medical condition has deteriorated with
the passage of time; and
q) the impact of these conditions has been exacerbated by his health problems
and by the prolonged periods of time for which Mr. Caesar has been
incarcerated.

Arguments of the representatives

51. The representatives, with respect to Article 5 of the American Convention,
stated that:
a) any sentence of whipping or flogging is cruel, inhuman and degrading.
Moreover, the principle of humanity requires the prohibition of all corporal
punishment;
b) the term “torture” applies to the aggravated mistreatment of persons. Torture
might be expected to leave long-term effects, either by way of post-traumatic
stress, or serious injury, but it need not to do so. Torture is often associated
with actions that subject the alleged victim to sustained and unpredictable
cruelty over which there is no legal restraint. Furthermore, punishment duly
prescribed by law is capable of amounting to torture. Finally, cruel, inhuman
or degrading punishment inevitably causes problems that cannot be
remedied;

Regarding Mr. Caesar's Corporal Punishment
c) the sentence of corporal punishment and the manner in which it was carried
out violate Articles 5.1 and 5.2 of the Convention;
d) the time limit established by the Corporal Punishment Act for carrying out the
flogging is absolute and cannot be extended because of the prisoner’s illhealth;
e) the execution of the judgment that ordered corporal punishment or treatment
is cruel, inhuman and degrading itself, even without the aggravating factors
that Mr. Caesar suffered. Moreover, the corporal punishment was carried out
23 months after his sentencing and was therefore in flagrant violation of the
State’s own law;
f) Mr. Caesar experienced severe anguish, stress and fear as he was exposed to
the suffering of other inmates, as well as during the moments immediately
preceding his actual flogging, due to his recent hemorrhoid surgery;
g) the carrying out of the corporal punishment in the presence of complete
strangers severely humiliated Mr. Caesar;
h) the doctor present during the corporal punishment breached his ethical code
by permitting the punishment to be executed, as he was fully aware of the
alleged victim’s health condition; and
i) the State violated Article 2 of the Convention by failing to give domestic legal
effect to the rights protected under Article 5 of the Convention;
Regarding Mr. Caesar’s detention conditions
j) the conditions of detention to which Mr. Caesar has been subjected violate
Articles 5.1 and 5.2 of the Convention and, moreover, fail to meet the
standards required by the relevant United Nations Minumum Rules; and
k) Mr. Caesar was not given the necessary surgery until five or six years after
the pertinent medical recommendation, in breach of the relevant United
Nations Minimum Rules, a situation that worsened his condition. The date of
the hemorrhoid operation mentioned by Mr. Caesar may be incorrect, as it
may have occurred in early 1997.

The Court’s assesment

52. Article 5(1) and 5(2) of the Convention provide:
1. Every person has the right to have his physical, mental, and moral integrity
respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be treated with
respect for the inherent dignity of the human person.

53. Article 1(1) of the American Convention stipulates:
[t]he States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for reasons of
race, color, sex, language, religion, political oar other opinion, national or social origin,
economic status, birth, or any other social condition.

54. Article 2 of the American Convention provides:
[w]here the exercise of any of the rights or freedoms referred to in Article 1 is not
already ensured by legislative or other provisions, the States Parties undertake to adopt,
in accordance with their constitutional processes and the provisions of this Convention,
such legislative or other measures as may be necessary to give effect to those rights or
freedoms.

55. In this section the Court will address the following issues under Article 5(1)
and 5(2), in relation to Articles 1(1) and 2, of the Convention:
a) the lawfulness of the State’s imposition of the corporal punishment of
flogging under said provisions and the manner in which the judicial corporal
punishment was inflicted upon Mr. Caesar;
b) whether the State has failed to comply with its general obligation
under Article 2 of the Convention to give domestic legal effect to the rights
protected under Article 5; and
c) whether Mr. Caesar’s conditions of detention amounted to a violation
of said provisions on the part of the State.
*
Regarding the lawfulness of the State’s imposition of the corporal punishment of
flogging under Article 5(1) and 5(2), in conjunction with Article 1(1), of the Convention,
and the manner in which the judicial corporal punishment was inflicted upon Mr. Caesar

56. The Commission submitted that the form of punishment to which Mr. Caesar
was subjected, is “by its nature, intention and effects [inherently] inconsistent with
the [minimum] standards of humane treatment under Articles 5(1) and 5(2) of the
American Convention”.

57. To judge whether the State violated Article 5(1) and 5(2) of the American
Convention in the instant case, the Court must first decide upon the compatibility of
a state’s imposition of corporal punishment, specifically by flogging, with regard to
said provision. To this end, the Court deems it pertinent to offer an overview of this
punishment under international and domestic law and practice.

58. Every international human rights instrument of general scope, whether
regional or universal, contains provisions similar in content to Article 5 of the
American Convention.14 These general provisions are complemented by the express
prohibition of torture and other cruel, inhuman or degrading treatment or
punishment in particular international instruments and, of relevance to the instant
case, the prohibition of the use of corporal punishment.15

59. The Inter-American Court has held that

[…] torture and cruel, inhuman or degrading punishment or treatment are strictly
prohibited by international human rights law. The prohibition of torture and cruel,
inhuman or degrading punishment or treatment is absolute and non-derogable, even
under the most difficult circumstances, such as war, threat of war, the fight against
terrorism and any other crimes, martial law or a state of emergency, civil commotion or
conflict, suspension of constitutional guarantees, internal political instability or other
public emergencies or catastrophes.16

60. In particular, international case law and the following authorities have
considered that corporal punishment is incompatible with international guarantees
against torture and other cruel, inhuman or degrading treatment.

61. The United Nations Special Rapporteur on Torture has stated that Article 31 of
the United Nations Standard Minimum Rules for the Treatment of Prisoners reflects
the international prohibition of cruel, inhuman or degrading treatment, and, more
broadly, that "corporal punishment is inconsistent with the prohibition against
torture, and cruel, inhuman or degrading treatment or punishment enshrined, inter
alia, in the Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights, the Declaration on the Protection of All Persons from Being
Subjected to Torture, Cruel, Inhuman or Degrading Treatment or Punishment, and
the Convention against Torture, Cruel, Inhuman or Degrading Treatment or
Punishment.”17

62. Similarly, the United Nations Human Rights Committee has concluded that the
prohibition of torture and cruel, inhuman or degrading treatment or punishment
contained in Article 7 of the International Covenant on Civil and Political Rights
should be extended to corporal punishment, “including excessive chastisement
ordered as punishment for a crime, or as an educative or disciplinary measure”.18 With respect to the use of corporal punishment in Trinidad and Tobago, the
Committee specified in its Concluding Observations on a report submitted by Trinidad
and Tobago under Article 40 of the Covenant that it was “disturbed to learn that
apart from prohibiting corporal punishment for persons under 18 years of age, the
State party is still practicing the punishment of flogging and whipping which are cruel
and inhuman punishment prohibited by article 7.” It thus recommended that the
State immediately abolish all sentences of flogging or whipping.19

63. The Human Rights Committee has reached similar conclusions in its decisions
on individual complaints. For example, in the case of Sooklal v. Trinidad and Tobago,
the Committee ruled that the administration of birching provided for by the law of
the State as a sanction constitutes cruel, inhuman or degrading treatment or
punishment contrary to Article 7 of the Covenant. Similarly, in the case Osbourne v.
Jamaica, the Committee found that by carrying out a sentence of whipping with a
tamarind switch, the State party had breached its obligations under said provision.20 In that ruling the Committee stated that:

[i]rrespective of the nature of the crime that is to be punished, however brutal it may
be, it is the firm opinion of the Committee that corporal punishment constitutes cruel,
inhuman and degrading treatment or punishment contrary to Article 7 of the Covenant.

64. In the Case of Tyrer v. United Kingdom, the European Court of Human Rights
addressed the incompatibility of corporal punishment with the right to humane
treatment under Article 3 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms. In the case of a minor who had been subjected
to three strokes of the birch pursuant to domestic legislation in the Isle of Man
(United Kingdom), the Court concluded that the treatment was degrading and as
such violated Article 3 of the European Convention. The European Court held that:
[t]he very nature of judicial corporal punishment is that it involves one human being
inflicting physical violence on another human being. Furthermore, it is institutionalised
violence, that is in the present case violence permitted by the law, ordered by the
judicial authorities of the State and carried out by the police authorities of the State […]
Thus, although the applicant did not suffer any severe or long-lasting physical effects,
his punishment - whereby he was treated as an object in the power of the authorities -
constituted an assault on precisely that which it is one of the main purposes of Article 3
(art. 3) to protect, namely a person's dignity and physical integrity. Neither can it be
excluded that the punishment may have had adverse psychological effects.
The institutionalized character of this violence is further compounded by the whole aura
of official procedure attending the punishment and by the fact that those inflicting it
were total strangers to the offender.21

65. Furthermore, norms of international humanitarian law absolutely prohibit the
use of corporal punishment in situations of armed conflict, as well as in times of
peace.22

66. It should be noted that a number of those States that still retained corporal
punishment have recently abolished it.23 Moreover, an increasing number of
domestic courts have concluded that the imposition of corporal punishment,
regardless of the circumstances of the case and the modalities through which it is
carried out, constitutes cruel, inhuman and degrading treatment, and represents a
form of punishment no longer acceptable in a democratic society.24

67. The European Court of Human Rights has held that a treatment must attain a
minimum level of severity in order to be considered inhuman or degrading and, in
the extreme, torture. The evaluation of this minimum level is relative and depends
on the circumstances of each case, such as the duration of the treatment, and its
physical and mental effects.25

68. Furthermore, in the Celebici case the Trial Chamber of the International
Criminal Tribunal for the Former Yugoslavia analyzed international humanitarian law
and human rights law standards, on the basis of which it defined inhuman or cruel
treatment as:
[…] an intentional act or omission, that is an act which, judged objectively, is deliberate
and not accidental, that causes serious mental or physical suffering or injury or
constitutes a serious attack on human dignity.26

69. For its part, the Inter-American Court has, since the case of Loayza Tamayo
v. Perú, held that:
[t]he violation of the right to physical and psychological integrity of persons is a
category of violation that has several gradations and embraces treatment ranging from
torture to other types of humiliation or cruel, inhuman or degrading treatment with
varying degrees of physical and psychological effects caused by endogenous and
exogenous factors which must be proven in each specific situation. The European Court
of Human Rights has declared that, even in the absence of physical injuries,
psychological and moral suffering, accompanied by psychic disturbance during
questioning, may be deemed inhuman treatment. The degrading aspect is characterized
by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading
the victim and breaking his physical and moral resistance.27

70. The abovementioned international instruments and its own case law lead the
Court to conclude that there is a universal prohibition of torture and other cruel,
inhuman or degrading treatment or punishment, independent of any codification or
declaration, since all these practices constitute a violation of peremptory norms of
international law.28 The Court also notes the growing trend towards recognition, at
international and domestic levels, of the impermissible character of corporal
punishment, with regard to its inherently cruel, inhuman and degrading nature. In
consequence, a State Party to the American Convention, in compliance with its
obligations arising from Articles 1(1), 5(1) and 5(2) of that instrument, is under an
obligation erga omnes to abstain from imposing corporal punishment, as well as to
prevent its administration, for constituting, in any circumstance, a cruel, inhuman or
degrading treatment or punishment.

71. In the instant case, Mr. Caesar was subjected to corporal punishment by
flogging, pursuant to a sentence delivered by the High Court of Trinidad and Tobago,
according to the terms of Trinidad and Tobago’s Corporal Punishment Act. This law
authorizes domestic courts to order the application of sentences of corporal
punishment for certain crimes, for any male offender, in addition to any other
punishment for which he is liable, whether by flogging with a “cat-o-nine tails” or by
whipping with a tamarind rod, birch or other switches, “or in either case such other
instruments as the President may from time to time approve” (supra para. 49(7)).

72. According to the evidence presented to the Court, the “cat-o-nine tails”
consists of a plaited rope instrument made up of nine knotted thongs of cotton cord,
30 inches long and less than one quarter of an inch in diameter, attached to a
handle, which are lashed across the back of the subject, between the shoulders and
the lower area of the spine (supra para. 49(8)). The instrument is designed to
bruise and lacerate the skin of the subject and is also intended to cause severe
physical and psychological suffering. As such, the Court is convinced that the cat-onine
tails, as regulated and used in Trinidad and Tobago for the administration of
corporal punishment by flogging, is used to inflict a cruel, inhuman and degrading
form of punishment.

73. Regarding the law and practice in Trinidad and Tobago of judicial corporal
punishment by flogging, the Court considers that the very nature of this punishment
reflects an institutionalization of violence, which, although permitted by the law,
ordered by the State’s judges and carried out by its prison authorities, is a sanction
incompatible with the Convention.29 As such, corporal punishment by flogging
constitutes a form of torture and, therefore, is a violation per se of the right of any
person submitted to such punishment to have his physical, mental and moral
integrity respected, as provided in Article 5(1) and 5(2), in connection with Article
1(1) of the Convention. Accordingly, Trinidad and Tobago’s Corporal Punishment Act
must be considered in contravention to Article 5(1) and 5(2) of the Convention (infra
para. 94).

74. While the Inter-American Court is neither authorized nor required by the
Convention to pronounce on the compatibility of the actions of individuals with the
Convention, it is nevertheless obvious that the conduct and decisions of civil servants
and state agents must be framed within those international obligations. In the
instant case, where the Corporal Punishment Act of Trinidad and Tobago gives the
relevant judicial officer an option to order corporal punishment in addition to
imprisonment in certain circumstances, the Court feels bound to put on record its
profound regret that the presiding officer in the State´s High Court saw fit to
exercise an option which would manifestly have the effect of inflicting a punishment
that is not merely in blatant violation of the State´s international obligations under
the Convention, but also is universally stigmatized as cruel, inhuman, and degrading.
*
75. The Court will now examine the particular circumstances in which Mr.
Caesar’s sentence of corporal punishment was carried out.

76. It is established that State agents flogged Mr. Caesar with a “cat-o-nine tails”
on February 5, 1998. Mr. Caesar´s affidavit leaves little to the imagination
concerning the physical and emotional impact of this punishment, as well as the
anguish and suffering he experienced in the moments immediately preceding the
punishment. He described the experience as follows:
[…] On 5 February 1998, I received 15 strokes with the cat-o-nine tails. […] there were
4 other men in the cell with me. I was the last to be beaten. I was even more
frightened this time […] I was still recuperating and was weak when they took me to be
beaten. I was afraid that I would not come out of the beating alive because of my
condition. […]

[…] I was taken to the room where I was to be beaten. […] the prison doctor, […] the
Chief Infirmary Officer at the Port of Spain Prison, a Prison Supervisor […], two other
men who I did not know but I believe that they were from the Ministry of National
Security and two prison officers were present in the room. [The prison doctor] told me
to take off my clothes. I told [him] that I just had surgery. He knew this. He did not
reply. I took my clothes off. [The prison doctor] took my blood pressure [and] then
said “he alright, go ahead.” […]

[…] I was then made to lie spread eagled and naked on a metal contraption, known
among the prisoners as the “Merry Sandy.” It had that kind of spread-eagled shape. I
could not turn my head. I could only stare ahead. The two prison officers strapped me
on to the “Merry Sandy”. They tied my hands and feet tightly to it. They then covered
my head with a sheet. I was scared. I was nauseous. My body was shaking. I felt a terrible painful lash to my shoulder. My body tensed. I heard a male voice say
“one”. This was the man beating me. I did not know who he was. The man beating
me waited for my muscles to relax, brought the cat-o-nine down on by [sic] back again
and said “two”. Each time he waited for my muscles to become less tense before
hitting me. Each time he said out loud the number of lashes I had already received.
The pain was unbearable. All this time he was lashing me I was screaming in pain,
becoming hysterical, screaming that they were trying to kill me. I cannot remember how many blows I received when I began to feel faint […] The beating nevertheless
continued and I passed out. When I awoke I was lying on a stretcher in the same
room. The Superintendent said that I was to be taken to the infirmary.
[…] I remained in the infirmary for 2 months after the beating. I was beaten on my
back and shoulders. My shoulders were bruised and I was in a lot of pain. I was weak.
[…] I received no medical treatment for the beating except painkillers. I was kept in
the infirmary because I was ill and weak from surgery and the authorities were afraid
something might happen to me.
[…] Up to the present time I continue to feel the blows and still suffer pain in my
shoulders.30

77. The physical harm and pain caused by the flogging were exacerbated by the
anguish, stress and fear Mr. Caesar suffered during the period in which he awaited
his punishment. Moreover, on three or four separate occasions, he was exposed to
the suffering of other prisoners subjected to similar punishment. He stated:
I was trembling. I was taken downstairs to another cell block and put in a cell with four
other men. We were kept in the cell overnight. I was tense and frightened and did not
sleep that night. […] The officers [took one of the prisioners and] brought him back
about half an hour after. […] I became very frightened when I saw his condition. […] It
was mental torture waiting for my turn and I was shaking. […] I was subjected to the
same thing on 3 further occasions. On each of those occasions I was placed in a cell
downstairs with four other prisoners. On each occasion the other men were beaten and
I was not. It was a lot of torture for me. […] I watched some of them cry. […] I suffered
mental and emotional torture. I was very frightened each time. […]31

78. Mr. Caesar was subjected to the threat of imminent physical abuse, which
could have been inflicted at any moment, and was deliberately forced to witness the
effects of such punishment upon the other prisoners, causing him severe anguish
and fear.

79. Moreover, the Court shares the Commission’s view that the sentence was
carried out in a manner that severely humiliated Mr. Caesar. He was forced to lie
“spread-eagled and naked” on a metal contraption before at least six persons,
completely immobilized, while the strokes were delivered.

80. In keeping with domestic regulations and practice,32 the prison doctor was
present before and during the alleged victim’s flogging to advise on the prisoner’s
physical condition, and to decide whether the punishment could be safely carried out.
The representatives alleged that, by authorizing the flogging despite his knowledge
of Mr. Caesar’s medical condition, the prison doctor acted in violation of his ethical
duty. The Commission argued that such circumstances raise serious questions as to
whether the medical personnel in the State’s prisons comply with international
standards governing the conduct of health personnel, in particular those set forth in
the United Nations’ Principles of Medical Ethics Relevant to the Role of Health
Personnel in the Protection of Prisoners and Detainees against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.33

81. As noted above, the Court does not assess individual responsibilites; its
function is rather to protect the victims, determine when their rights have been
violated and order reparation for the damage caused by the State responsible for
such acts.34

82. The Commission also argued that the evidence presented confirms that the
suffering experienced by Mr. Caesar was also exacerbated by his own vulnerable
medical condition, specifically owing to his surgery for hemorrhoids only weeks
before the flogging. The alleged victim himself affirmed this situation in his affidavit.
However, the representatives stated during the public hearing that the date alleged
as the day of the surgery may have been incorrect.

83. It was proven that the alleged victim developed hemorrhoids during his
detention and, as a result, underwent surgery in January 1997 (supra para. 49(19)).
Since there is no showing that the abovementioned surgery occurred a few weeks
before the flogging, there are no grounds for finding aggravating circumstances in
this context.

84. It is established that, after the flogging, the only medical treatment provided
by the State consisted of painkillers, notwithstanding the fact that he had been
injured and that his medical condition was already precarious. This conclusion is
supported by Robert Ferris’ statement that he found no medical records of any kind
relating to the corporal punishment, its effects on Mr. Caesar or any treatment
provided (supra para. 49(29)).

85. The Commission further argued that, since the punishment was carried out 23
months after the alleged victim’s sentencing, it was in flagrant violation of the
State’s own domestic law, as well as contrary to Article 5(1) and 5(2) of the
Convention.

86. The Court notes that Section 6 of the Corporal Punishment Act of Trinidad and
Tobago requires a sentence of corporal punishment to be carried out within six
months from the date of sentencing. As shown above, the 1994 amendment to the
Corporal Punishment Act provided that any period of appeal would not count in
reckoning the statutory limit of six months (supra para. 49(9)). This amendment,
however, was not applicable to Mr. Caesar’s situation, since he was sentenced prior
to its entry into force. In any event, the flogging was performed some five years and
seven months outside the statutory limit, so that it can be reasonably assumed that
the delay both augmented and extended his mental anguish.35

87. The Court, thus, has endeavored to assess all of the aggravating
circumstances which arose in the infliction of Mr. Caesar’s punishment and has taken
into account the degree of intensity of physical and mental pain suffered by him,
which was in turn exacerbated by the treatment he received before and after the
flogging. In that regard, the Commission argued that there has been an additional
violation of the Convention in relation to those aggravating circumstances.

88. In the preceding paragraphs, the Court declared that the corporal punishment
by flogging, as it was examined in the instant case, must be considered as a form of
torture and is, therefore, contrary per se to Article 5(1) and 5(2) of the Convention
and to peremptory norms of international law (supra para. 73). Furthermore, the
Court is cognizant of the severe aggravating circumstances discussed above,
namely: the extreme humiliation caused by the flogging itself; the anguish, stress
and fear experienced while awaiting the punishment in prison, a period that was
marked by excessive delay; and Mr. Caesar’s observation of the suffering of other
prisoners who had been flogged. The extreme gravity and the degree of intensity of
physical and psychological suffering caused by these circumstances upon Mr. Caesar
will be considered when assessing the pertinent reparations (infra para. 127).

89. In all the circumstances, therefore, the Court finds that the State violated
Article 5(1) and 5(2), in connection with Article 1(1), of the Convention, to the
detriment of Mr. Winston Caesar.
*
On whether the State has failed to comply with its general obligation under Article 2 of
the Convention to give domestic legal effect to the rights protected under Article 5 of
said Convention.

90. The Court now will assess whether the State has fulfilled its general
obligations under Article 2 of the Convention in this regard.

91. In interpreting Article 2 of the Convention, the Court has held that:36 [i]f the States, pursuant to Article 2 of the American Convention, have a positive
obligation to adopt the legislative measures necessary to guarantee the exercise of the
rights recognized in the Convention, it follows, then, that they also must refrain both
from promulgating laws that disregard or impede the free exercise of these rights, and
from suppressing or modifying the existing laws protecting them. These acts would
likewise constitute a violation of Article 2 of the Convention.

92. The violations of Article 5(1) and 5(2) of the Convention to the detriment of
Mr. Caesar resulted not only from the actions and omissions of State agents, but
above all from the very existence and the terms of Trinidad and Tobago’s Corporal
Punishment Act (supra para. 73).

93. The Court has declared this law to be incompatible with Article 5 of the American Convention. Once the Convention entered into force for Trinidad and
Tobago, the State should have adapted its legislation to the obligations set forth in
that treaty, as to ensure the most effective protection of the human rights
enumerated therein. It should be reaffirmed that, pursuant to Article 2 of the
Convention, the duty to adapt domestic legislation is by its very nature one of results
and, therefore, the denunciation of the Convention cannot extinguish the State’s
international obligations assumed while the treaty was in force. Such obligations
have an autonomous and automatic character and do not depend upon an actual
ruling of the Convention’s organs of supervision regarding a specific domestic law.

94. Having declared the incompatibility of the Corporal Punishment Act with the
Convention, the Court finds that, by its failure to abrogate this law following its
ratification of the Convention, the State did not comply with its obligations under
Article 2, in relation to Article 5(1) and 5(2) of the Convention.
*
On whether Mr. Caesar’s conditions of detention constitute a violation of Article 5(1)
and 5(2) of the Convention.

95. The Commission argued that the State is responsible for further violations of Mr.
Caesar’s right to humane treatment under Article 5(1) and 5(2) of the Convention due
to the conditions in which he has been detained. The Commission submitted that,
owing to these conditions of detention, the State has failed to meet domestic and
international standards in its treatment of Mr. Caesar. Furthermore, the Commission
argued that the impact of these conditions has been aggravated by the prolonged
periods of time during which Mr. Caesar has been incarcerated in connection with his
criminal proceedings.

96. In this regard, the Court has held that, in accordance with Article 5(1) and (2)
of the Convention,
[…] all persons deprived of their liberty have the right to detention conditions that are
compatible with their human dignity. On other occasions, the Court has indicated that
detention in conditions of overcrowding, with lack of ventilation and natural light,
without a bed for rest and adequate sanitary conditions, in isolation or with undue
restrictions upon the visiting schedule, constitute a violation of the right to humane
treatment. 37

97. In addressing the issue of prison conditions, the Court has taken note of other
international instruments, as well as the case law of other international human rights
institutions. Recently, the Court has held that the State is placed in a special position of guarantor in relation to persons deprived of their freedom, since penitentiary
authorities have full control over the persons subjected to their custody.38 In this
very particular context of subordination between the detainee and the State, the
latter has a special responsibility to ensure to those persons under its control
conditions that permit them to retain a degree of dignity consistent with their
inherent and non-derogable human rights.39

98. In the Case of Hilaire, Constantine and Benjamin et al., the Court found that
the conditions of detention in several Trinidad and Tobago prisons were characterized
by serious overcrowding, inadequate sanitation and poor hygiene and medical care.
The Court concluded that the conditions in which the victims of that case were
incarcerated were “in fact indicative of the general conditions in Trinidad and
Tobago’s prison system”, compelling the victims “to live under circumstances that
impinge on their physical and psychological integrity and therefore constitute cruel,
inhuman and degrading treatment”.40

99. As set out in the proven facts of this judgment, during his detention Mr.
Caesar has been held along with other prisoners in small and poorly ventilated cells,
equipped with a slop pail instead of a toilet, and has been obliged to sleep on the
floor. Since his incarceration, Mr. Caesar has also suffered from serious health
problems. Although examined by medical personnel on several occasions, Mr.
Caesar’s medical treatment has nonetheless been inadequate and his health
conditions have deteriorated with the passage of time (supra paras. 49(16) and
49(18)).

100. The Court finds that the conditions of detention to which Mr. Caesar has been
subjected have failed to respect his physical, mental, and moral integrity as required
under Article 5(1) of the Convention, and constitute inhuman and degrading
treatment contrary to Article 5(2) of the Convention, which enshrines provisions of
jus cogens. Therefore, the Court holds that the State is also responsible for the
violation of these provisions, in conjunction with Article 1(1) of the Convention, to
the detriment of Mr. Winston Caesar.

IX
ARTICLES 8 AND 25 OF THE AMERICAN CONVENTION
IN CONJUNCTION WITH ARTICLES 1(1) AND 2 OF THE CONVENTION
(RIGHT TO A FAIR TRIAL AND JUDICIAL PROTECTION)
Arguments of the Commission

101. The Inter-American Commision, with reference to Articles 8 and 25 of the
American Convention, stated that:

a) the State is responsible for violating Mr. Caesar’s right to be tried within a
reasonable time, under Article 8.1 of the Convention, because of the delay in
his criminal proceeding;
b) Mr. Caesar suffered a total delay of 15 years between his initial arrest on
November 11, 1983 and November 9, 1998, when the counsel informed Mr.
Caesar's lawyers that his attempt to pursue a final appeal before the Judicial
Committee of the Privy Council was unlikely to succeed. This period
represents an unreasonable delay that far exceeds the delay in previous cases
in which the Court has found violations of Article 8.1 of the Convention. The
State has not provided any explanation for this delay, nor do any facts appear
from the record that might account for such delay;
c) Section 6 of Trinidad and Tobago’s Constitution precludes any appeal against
the constitutionality of the Corporal Punishment Act;
d) the State is responsible for violating Mr. Caesar’s right to judicial protection
under Article 25 of the Convention, as well as its obligations under Article 2 of
the Convention, in connection with Articles 7(5) and 8(1) of the Convention,
by failing to guarantee, under its domestic law, the right to be tried within a
reasonable time;
e) the Constitution of Trinidad and Tobago does not include among its prescribed
fundamental rights and freedoms the right to a trial within a reasonable time,
fact that has been confirmed by the Judicial Committee of the Privy Council;
and
f) although Mr. Caesar was released by the State prior to his trial and therefore
did not need to invoke Article 7(5) of the Convention, the evidence indicates
that the State’s failure to provide for the right to be tried within a reasonable
time under Article 8(1) also necessarily implies, as a general proposition,
failure to protect the corresponding right under Article 7(5) of the Convention.

Arguments of the representatives

102. The representatives of the alleged victim, with respect to Articles 8 and 25 of
the American Convention, stated that:
a) the State violated Article 8 of the Convention by failing to provide Mr. Caesar
with a trial and appeal proceedings within a reasonable time;
b) the State violated Article 25 of the Convention, as it failed to provide Mr.
Caesar with a means of effective domestic recourse;
c) Mr. Caesar was subjected to a total delay of 12 years between his initial
arrest and his attempt to pursue an appeal before the Judicial Committee of
the Privy Council;
d) both the sentence itself and the manner in which it was carried out are
inconsistent with and violate the right enshrined under Section 4(a) and
Section 5(2)(b) of Trinidad and Tobago’s Constitution. However, the
violations of the rights enshrined in said Sections, are not capable of remedy
in domestic courts because of the “savings clause” in Section 6(1) of the
Constitution. Nevertheless, States cannot evade their obligations under
human rights treaties by reliance upon “savings clauses” that have the effect
of undermining or defeating domestic implementation of those obligations;
and
e) The State violated Article 2 of the Convention by failing to give domestic legal
effect to the rights protected under Article 8 of the Convention.

The Court’s assesment

103. Article 8(1) of the American Convention provides for the right to a fair trial as
follows:
Every person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established by
law, in the substantiation of any accusation of a criminal nature made against him or for
the determination of his rights and obligations of a civil, labor, fiscal, or any other
nature.

104. Article 25(1) of the American Convention guarantees the right to judicial
protection as follows:
Everyone has the right to simple and prompt recourse, or any other effective recourse,
to a competent court or tribunal for protection against acts that violate his fundamental
rights recognized by the constitution or laws of the state concerned or by this
Convention, even though such violation may have been committed by persons acting in
the course of their official duties.

105. There are two issues that the Court must address regarding the alleged
violations of Articles 8(1) and 25, all in connection with Articles 1(1) and 2, of the
American Convention:
a) the reasonableness of the length of the criminal proceedings; and
b) whether the domestic law of the State provides an effective remedy
against either the existence or the application of corporal punishment.
*
106. The Court notes that, after the judgment delivered by the Court of Appeal of
Trinidad and Tobago on February 28, 1996, Mr. Caesar still had the possibility to
apply for leave to appeal to the Privy Council. The Court cannot share the
Commission’s view that Mr. Caesar was subjected to a total delay of fifteen years in
the proceedings, to be calculated between his initial arrest in 1983 and his “attempt
to pursue an appeal before the Judicial Committee of the Privy Council in 1998”. That
“attempt” consisted in a legal opinion rendered in November 1998 by counsel in
London, at the request of Mr. Caesar’s lawyers, and therefore cannot be equated to a
procedural step in a judicial process. The length of the proceedings must be
calculated, therefore, on the basis that the final judgment in the case was reached
with the decision of the Court of Appeal of Trinidad and Tobago on February 28,
1996.

107. Although neither the Commission nor the representatives raised the issue of
the Court´s ratione temporis jurisdiction, it is incumbent on the Tribunal to consider
this question in the context of the actual duration of the criminal proceedings in
order to come to a conclusion as to the reasonableness of the time elapsed, for the
purpose of deciding whether there was a violation of the rights enshrined in Article
8(1) of the Convention.

108. On this point, the Court has held as follows:
When codifying general law on this issue, Article 28 of the Vienna Convention on the Law
of Treaties establishes that:

Unless a different intention appears from the treaty or is otherwise established,
its provisions do not bind a party in relation to any act or fact which took place
or any situation which ceased to exist before the date of the entry into force of
the treaty with respect to that party.41

109. In cases where the Court decided that it had no ratione temporis jurisdiction
to decide upon certain facts, it has made it clear that this situation does not imply a
judgment about the existence of those facts.42

110. In cases where the applicant alleged the violation of Articles 5(3) or 6(1) of
the European Convention on Fundamental Rights and Freedoms, the European Court
of Human Rights has restricted its considerations to the time period that falls into its
ratione temporis jurisdiction, starting from the date on which the State recognized
the right of individual petition or ratified the Convention. It is significant, however,
that the European Court nevertheless takes into account the amount of time that has
elapsed before this effective date – in cases of detention or in a legal proceeding, for
example – in its assessment of rights violations.43

111. The Court notes that the criminal proceedings lasted for more than 12 years,
if calculated from the first arrest of Mr. Caesar on November 11, 1983, as the
Commission and the representatives have done. However, as Trinidad and Tobago’s
recognition of the Court’s compulsory jurisdiction took effect on May 28, 1991, the
Court can only consider the period between the date of that recognition and the
decision of the Court of Appeal on February 28, 1996, the final judgment delivered in
the criminal proceedings. Mr. Caesar was convicted on January 10, 1992 by the High
Court of Trinidad and Tobago. His lawyers waited for almost two years to request
leave to appeal and, on February 28, 1996, the Court of Appeal dismissed the appeal
and confirmed the sentence. Therefore, the Court finds that the duration of the
criminal proceedings between May 28, 1991, and February 28, 1996 – discounting
the period of almost two years before that leave to appeal was sought – does not
constitute a delay that can be considered unreasonable, in the terms of Article 8(1)
of the Convention.

112. For the aforementioned reasons, the Court considers that the State is not
responsible for a violation of Article 8(1) of the Convention.
*
113. The Court must now turn to examine whether the domestic law of the State
provides an effective remedy against either the existence or the application of
corporal punishment.

114. In the instant case, domestic judges were authorized to sentence Mr. Caesar
to flogging with the “cat-o-nine-tails” under the laws of Trinidad and Tobago –
specifically, the Corporal Punishment Act.

115. It is important to note that, even if Mr. Caesar had been able to appeal to the
Privy Council, such an appeal would have been most unlikely to succeed. In this
regard the expert witness Desmond Allum commented that:
[o]ne of the fundamental reasons why there has been no substantial challenge to the
legality of a sentence of corporal punishment is the “savings clause”. This clause
effectively ensured that it was not open to [domestic] courts to impugn the
constitutionality of a sentence of corporal punishment as this [clause] predated the
coming into force of the 1976 Constitution, and accordingly, was “saved” into [Trinidad
and Tobago’s] law as good law.
In the recent case of Matthew v The State of Trinidad and Tobago, the Judicial
Committee of the Privy Council considered the “savings clause” in the context of the
death penalty. The majority of the Board of the Privy Council held that the mandatory
death penalty is a cruel and unusual punishment, and is therefore inconsistent with
Sections 4(a) and 5(2)(b) of the Constitution. However, a majority of the Board held
that the legislation imposing the mandatory death penalty was passed prior to the
Constitution, and, because of the “savings clause” in Section 6, it could not be
invalidated by reference to the fundamental rights for which Sections 4 and 5 of the
Constitution provide. Accordingly, the majority upheld the validity of the mandatory
death penalty.44

116. Similarly, in a 2002 judgment with regard to a case in the Bahamas, the
Judicial Committee of the Privy Council observed that “[…] it is accepted that flogging
is an inhuman and degrading punishment and, unless protected from constitutional
challenge under some other provision of the Constitution, is rendered
unconstitutional by [the provision of the Constitution prohibiting torture and inhuman
or degrading treatment or punishment]”.45 Nevertheless, on the basis of the
“savings clause” in the Constitution of the Bahamas, the Privy Council upheld the
constitutionality of the legislation authorising corporal punishment.

117. It follows from the above that the State did not provide the alleged victim
with an effective remedy to challenge the application of the aforementioned corporal
punishment. Therefore, the Court considers that Trinidad and Tobago is responsible
for the violation of Article 25, in relation to Articles 1(1) and 2, of the Convention, to
the detriment of Mr. Caesar.

X
REPARATIONS
(Application of Article 63(1) of the American Convention)
Arguments of the Commission
118. The Commission argued that:

a) the State must pay the reasonable and justified material and moral
damages related to the violations suffered by Mr. Caesar;
b) Mr. Caesar is entitled to receive a sum of compensation sufficient to
reflect the fundamental and serious nature of the violations committed
against him, both to provide adequate reparation as well as to deter
similar violations in the future;
c) it has no objection to the submission by the representatives of Mr. Caesar
regarding Mr. Caesar's early release from prison, due to the circumstances
of the present case; and
d) measures to ensure non-repetition of the violations suffered by Mr. Caesar
are crucial to a just and effective resolution of the matter before the
Court. In particular, the State must be compelled to adopt such
legislative or other measures as may be necessary to:
i. give effect to the right to a trial within a reasonable time under
Articles 7(5) and 8(1) of the Convention;
ii. abrogate or otherwise prohibit the punishment of flogging as
provided for under its Corporal Punishment Act;
iii. ensure that conditions of detention in state prisons, including
those of Mr. Caesar, comply with the standards of humane
treatment mandated by Article 5 of the Convention; and
iv. abrogate the “savings clause” under Section 6 of Trinidad and
Tobago's Constitution, insofar as that provision denies persons
effective recourse to a competent court or tribunal for
protection against acts that violate their fundamental rights
recognized by Trinidad and Tobago's Constitution.

Arguments of the Representatives

119. The representatives claimed no sum of compensation for Mr. Caesar,
considering that monetary compensation, which might normally be an appropriate
remedy, would be of limited use to him in his present situation in a maximum
security prison. The representatives maintained that in cases where a violation has
taken place and cannot be undone, mitigation of penalty is a suitable remedy for a
victim who remains in custody serving a sentence. Therefore, an appropriate remedy
for the violation of Mr. Caesar's rights would be his immediate release from his
sentence and that the remainder of that sentence be remitted. Moreover, as a
consequence of having violated Article 2 of the Convention, the State is obliged to
take the necessary measures to ensure consistency between its law and the
protections under the American Convention. Finally, the representatives claimed no
costs or expenses before the Court, as they are acting pro bono.

The Court’s assessments

120. In accordance with the analysis set forth in previous chapters, the Court
declared, based on the facts of the case, violations of Article 5(1) and 5(2) in
conjunction with Article 1(1) of the American Convention, Article 2, in relation to
Article 5(1) and 5(2) of the Convention, and Article 25 in conjunction with Articles
1(1) and 2 of said instrument. The Court has held, on a number of occasions, that
any violation of an international obligation resulting in harm carries with it an
obligation to provide adequate reparations.46 Article 63(1) of the American
Convention states that:
[i]f the Court finds that there has been a violation of a right or freedom protected by
this Convention, the Court shall rule that the injured party be ensured the enjoyment of
his right or freedom that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured party (emphasis
added).

121. This provision constitutes a rule of customary law that enshrines one of the
fundamental principles of contemporary international law on state responsibility.
Thus, when an illicit act is imputed to the state, there immediately arises a
responsibility on the part of that state for the breach of the international norm
involved, together with the subsequent duty to make reparations and put an end to
the consequences of said violation.47

122. The reparation of harm caused by a violation of an international obligation
requires, whenever possible, full restitution (restitutio in integrum), which consists in
restoring the situation that existed before the violation occurred. When this is not
possible, as in the present case, it is the task of this Tribunal to order the adoption of
a series of measures that, in addition to guaranteeing respect for the rights violated,
will ensure that the damage resulting from the infractions is repaired, by way, inter
alia, of payment of an indemnity as compensation for the harm caused.48 The
obligation to make reparations, which is regulated in all its aspects (scope, nature,
modalities, and designation of beneficiaries) by international law, cannot be altered
or eluded by the State´s invocation of provisions of its domestic law.49

123. Reparations, as the term indicates, consist in those measures necessary to
make the effects of the committed violations disappear. The nature and amount of
the reparations depend on the harm caused at both the material and moral levels.
Reparations cannot, in any case, entail either the enrichment or the impoverishment
of the victim or his or her family.50

124. In light of the abovementioned criteria, the Court will proceed to analyze the
submissions of the Commission and the representatives regarding reparations, in
order to determine the pertinent remedial measures to be adopted in the instant
case.
*

A) MORAL DAMAGES

125. Moral damage may include suffering and affliction caused to the direct victims
and their next of kin, detriment to very significant personal values, as well as nonpecuniary
alterations in the conditions of existence of a victim or his or her family.
Since it is not possible to assign a precise monetary equivalent to non-pecuniary
damage, for purposes of comprehensive reparation to victims, the Court must turn to
other alternatives: first, payment of an amount of money or delivery of goods or
services that can be estimated in monetary terms, which the Court will establish
through reasonable application of judicial discretion and equity; and second, acts or
works which are public in their scope or effects, commitment to efforts seeking to
avoid the repetition of violations, as well as recognition of the victim's dignity.51

126. It is well settled in international jurisprudence that a judgment constitutes,
per se, a form of reparation. However, considering the circumstances of the present
case and its non-pecuniary consequences, the Court deems it appropriate that the
moral damages must also be repaired, on grounds of equity, through the payment of
compensation.52

127. In order to determine compensation for the moral damage suffered by the
victim, the Court has taken into account the aggravating circumstances of his
corporal punishment with the “cat-o-nine tails”, namely the anguish, deep fear and
humiliation suffered by Mr. Caesar prior to and during the flogging. Moreover, the
Court notes that the delay in executing the sentence increased his anguish while he
was waiting to be punished. As a result of the corporal punishment, Mr. Caesar
continues to experience pain in his shoulders and he has also suffered, inter alia,
from symptoms of depression, fear, and anxiety of a severity sufficient to allow the
expert witness Robert Ferris to diagnose, at a minimum, an adjustment disorder.
And finally, since his incarceration, the victim has suffered from serious health
problems that have not been properly treated by state authorities (supra paras.
49(18), 49(19), 49(21), 49(31), 49(32) and 89).

128. Taking all of the elements of the present case into account, the Court sees fit,
on grounds of equity, to direct Trinidad and Tobago to grant an indemnity of US $
50.000,00 (fifty thousand United States of America dollars) to Mr. Winston Caesar
for moral damages. The Court notes here that no specific arguments or requests
regarding Mr. Caesar's next-of-kin were submitted.

B) OTHER FORMS OF REPARATION
(SATISFACTION MEASURES AND NON-REPETITION GUARANTEES)

129. In this chapter, the Court will determine the satisfaction measures to repair
non-pecuniary damages; such measures seek to impact the public sphere.53

130. The Court declared that the imposition of corporal punishment by flogging is
in absolute contravention to the Convention. The aberrant character of such
punishment has led the Court to conclude that Mr. Caesar was subjected to torture,
as well as to other inhuman and degrading treatment due to the conditions of his
detention (supra paras. 70, 73 and 100).

131. Furthermore, having examined the body of evidence submitted in the instant
case, it is clear that Mr. Caesar’s physical and psychological problems persist and
have not been properly treated (supra para. 49(32)). Consequently, as it has on
other occasions,54 the Court directs the State to provide Mr. Caesar, with effect from
the date of notification of this judgment, through its national health services, free of
charge and for such period as may be necessary, such medical and psychological
care and medication as may be recommended by appropriately qualified specialists.

132. Having found that the Corporal Punishment Act is incompatible with the terms
of Article 5(1) and 5(2) of the Convention (supra paras. 73 and 94), the Court directs the State to adopt, within a reasonable time, such legislative or other
measures as may be necessary to abrogate the Corporal Punishment Act.

133. The Court has held that “Section 6 of the Constitution of the Republic of
Trinidad and Tobago of 1976 establishes that no law in effect prior to the date the
Constitution entered into force may be the object of constitutional challenge under
Sections 4 and 5 […]. The Mandatory Death Penalty Act was declared incompatible
with the American Convention and thus any provision that establishes that Act’s
immunity from challenge is likewise incompatible, by virtue of the fact that Trinidad
and Tobago, as a Party to the Convention at the time that the acts took place,
cannot invoke provisions of its domestic law as justification for failure to comply with
its international obligations”.55 Similarly, inasmuch as it immunises the Corporal
Punishment Act from challenge, the “savings clause” under Section 6 of Trinidad and
Tobago's Constitution is incompatible with the Convention. Therefore, the Court
orders the State to amend, within a reasonable time, Section 6 of Trinidad and
Tobago's Constitution insofar as that provision denies persons effective recourse to a
competent court or tribunal for remedy against violations of their human rights.

134. The Commission and the representatives also argued that the State’s
penitentiary system permits prisoners to be detained in conditions that fail to respect
their rights to physical and mental integrity and to humane treatment. In this regard,
the Court has also found that the prison conditions to which Mr. Caesar has been
subjected are contrary to Article 5(2) of the Convention and are representative of
Trinidad and Tobago’s prison system (supra para. 49(22) and 100). Therefore, the
Court deems it necessary to order the State, as it did in the Case of Hilaire,
Constantine, Benjamin et al.56, and as a guarantee of non-repetition, to adopt, within
a reasonable time, all necessary measures to bring the conditions of its prisons into
compliance with the relevant international human rights norms.

C) COSTS AND FEES

135. Since the representatives claimed no costs or expenses before the Court, as
they are acting pro bono, and the Commission did not submit any observations on
this point, the Court makes no award with regard to costs and expenses in the
present case.

XI
MEANS OF COMPLIANCE

136. The State is directed to pay the compensation ordered (supra para. 128)
within one year of the notification of this judgment and to adopt the other measures
of reparation ordered in accordance with the provisions of paragraphs 131 to 134 of
this judgment.

137. The payment of the compensation ordered in favor of the victim shall be
made directly to him. If he has died, the payment shall be made to his heirs.

138. The State may comply with its obligations by payment in United States dollars
or the equivalent amount in national currency, using the rate of exchange between
the two currencies in force on the market in New York, United States of America, the
day before payment, in order to make the respective calculation.

139. If, due to causes that can be attributed to the beneficiary of the
compensation, he is unable to claim such compensation within the said period of one
year, the State shall deposit such amount in his favour in an account or a deposit
certificate in a reputable national banking institution, in United States dollars or the
equivalent in Trinidad and Tobago currency and in the most favourable financial
conditions allowed by legislation and banking practice. If, after ten years, the
compensation has not been claimed, the sum shall be returned to the State, with the
interest earned.

140. The payment ordered in this judgment as compensation for moral damages
may not be affected, reduced or conditioned by any current or future taxes or
charges. Consequently, it shall be paid in full to the victim in accodance with the
present judgment.

141. If the State falls in arrears, it shall pay interest on the amount owed,
corresponding to bank interest on arrears in Trinidad and Tobago.

142. In accordance with its consistent practice, the Court retains the authority,
inherent in its competence, to monitor compliance with this judgment. The instant
case shall be closed when the State has fully implemented all of the provisions of this
judgment. Within one year of notification of this judgment, the State shall provide
the Court with a first report on the measures taken in compliance.

XII
OPERATIVE PARAGRAPHS

143. Therefore,

THE COURT,

DECLARES,

Unanimously, that:

1. The State violated the right enshrined in Article 5(1) and 5(2) in conjunction
with Article 1(1) of the American Convention on Human Rights, to the detriment of
Mr. Winston Caesar, in the terms of paragraphs 70, 73, 89 and 100 of this judgment.

2. The State breached its obligations established in Article 2 of the American
Convention on Human Rights, in relation to Article 5(1) and 5(2) of the Convention,
to the detriment of Mr. Winston Caesar, in the terms of paragraph 94 of this
judgment.

3. The State did not violate the right enshrined in Article 8(1) of the American
Convention on Human Rights, for the reasons set forth in paragraphs 106 to 112 of
this judgment.

4. The State violated the right enshrined in Article 25 in conjunction with Articles
1(1) and 2 of the American Convention on Human Rights, to the detriment of Mr.
Winston Caesar, in the terms of paragraphs 113 to 117 of this judgment.

5. This judgment constitutes, per se, a form of reparation, in the terms of
paragraph 126 of this judgment.

AND DECIDES,

Unanimously, that:

1. The State shall pay the compensation ordered in paragraph 128 of this
judgment to Winston Caesar for moral damages.

2. The State shall, with effect from the date of notification of this judgment,
provide Mr. Winston Caesar, through its national health services, free of charge and
for such period as may be necessary, such medical and psychological care and
medication as may be recommended by appropriately qualified specialists, in the
terms of paragraph 131 of this judgment.

3. The State shall adopt, within a reasonable time, such legislative or other
measures as may be necessary to abrogate the Corporal Punishment Act (Offenders
Over Eighteen), in the terms of paragraph 132 of this judgment.

4. The State shall amend, within a reasonable time, Section 6 of Trinidad and
Tobago's Constitution, in the terms of paragraph 133 of this judgment.

5. The State shall adopt, within a reasonable time, such measures as may be
necessary to bring the conditions of detention in its prisons into compliance with the
relevant international human rights norms, in the terms of paragraph 134 of this
judgment.

6. The State shall pay the compensation ordered in favor of Mr. Winston Caesar
directly to him within one year of the notification of this judgment, in the terms of
paragraph 128 of this judgment.

7. The State may comply with the pecuniary dispositions in this judgment by
payment in United States dollars or the equivalent amount in national currency,
using the rate of exchange between the two currencies in force on the market in New
York, United States of America, on the day preceding the day of payment.

8. If, for reasons attributable to the recipient of the compensation herein
ordered, he is unable to claim such compensation within the stipulated period of one
year, the State shall deposit such amount in his favour in an account or a deposit
certificate in a reputable national banking institution, in the terms of paragraph 139
of this judgment.

9. The payment for moral damages ordered in this judgment shall not be subject
to or affected or reduced by any existing or future taxes or charges, in the terms of
paragraph 140 of this judgment.

10. If the State falls into arrears in the payments ordered, it shall pay interest on
the amount owed at the going bank rate in Trinidad and Tobago.

11. It shall monitor compliance with this judgment and shall close the instant
case when the State has fully implemented all of its provisions. Within one year of
the notification of this judgment, the State shall provide the Court with a report on
the measures taken in compliance, in the terms of paragraph 142 of this judgment.
Judges García-Ramírez, Jackman, Cançado-Trindade and Ventura-Robles advised the
Court of their Concurring Opinions, which accompany this judgment.

Drafted in San José, Costa Rica, on March 11, 2005, in English and Spanish, both
texts being authentic.

The present judgment, with which I wholly concur, is of particular
importance for at least three reasons: its reaffirmation that the practice of corporal
punishment by States Parties to the American Convention on Human Rights (“the
Convention”) is in flagrant breach of that treaty; its insistence on the absolute
necessity that States should respect their treaty obligations; and its rejection of the
dismal device known as “savings clauses” which have the effect of permitting certain
states in the Commonwealth Caribbean the luxury of simultaneously reprobating and
approbating internationally illicit behaviours.

Corporal punishment

The Court’s judgment adequately details the extent to which international
human rights jurisprudence has outlawed this cruel, inhuman, and degrading
punishment, so that there is no need for me to dilate on it further. It is, however,
worth noting that, quite apart from the international opprobrium which this practice
has attracted, the Supreme Curt of a jurisdiction with great constitutional similarity
to Trinidad and Tobago had no difficulty, in the Barbadian case of Hobbs et al v R, in
finding that flogging with the cat-o´-nine-tails is, in the words of Chief Justice Sir
Denys Williams, “…inhuman within the meaning of section 15(1) [of the Constitution
of Barbados]” and “…degrading within the meaning of section 15(1)”. The section
referred to by the learned Chief Justice reads as follows:
15. (1) No person shall be subjected to torture or to inhuman or
degrading punishment of other treatment.
The relevant Trinidad and Tobago constitutional provision states that:
[…The] Parliament may not… impose or authorize the imposition of
cruel and unusual treatment or punishment […]
Pacta sunt servanda

But, will Trinidad and Tobago comply with the decision of the Court? To judge
from its failure to participate in the hearing of this case, and given its previous
contemptuous attitude in the Hilaire case, compliance is, to say the least, unlikely.
This despite the State’s indisputable responsibility under international law to answer
to the Inter-American human rights system for any violations of the Convention
alleged to have taken place during the period from May 28 1991, the day on which
the State ratified the Convention and recognised the compulsory jurisdiction of the
Court, and May 26, 1999, the day on which its denunciation of the Convention took
legal effect.

The principle that states should abide in good faith by the terms of treaties
into which they voluntarily enter (pacta sunt servanda) is the bedrock of
international comity and international law. Article 26 of the Vienna Convention on
the Law of Treaties (“the Vienna Convention”) reads as follows: “Every treaty in
force is binding upon the parties to it and must be performed by them in good
faith”. (Emphasis added.)

It ought to be obvious that good faith compliance is of even greater
importance in the area of international human rights law, where what is at stake is
not the impersonal interests of states but the protection of the fundamental rights of
the individual. Trinidad and Tobago’s denunciation of the Convention was profoundly
regrettable for the cause of a universal regime of human rights protection, but the
State was fully within its rights to take that unprecedented step. But its
contumelious refusal to acknowledge its continuing obligations under a treaty that
remained in force for it when the violations in this case took place represents a
gratuitous attack on the Rule of Law, all the more astonishing in a State that, like
other Commonwealth Caribbean states, prides itself on its Common Law traditions,
where respect for human rights and for the Rule of Law are deeply embedded in the
legal culture.At present, in the wake of Trinidad and Tobago’s brief sojourn and
precipitous withdrawal, only four of those states are party to the Convention. Only
one, Barbados, has accepted the contentious jurisdiction of the Court. On the
evidence of that State’s recent refusal, in the context of its very first procedural
contact with the Court, to obey an interlocutory Order of the Court in a matter
referred to the Court by the Inter-American Commission under the terms of Article
63.2 of the Convention, it seems that Barbados is bent on following the scofflaw
example of its CARICOM colleague and neighbour.
Although - unlike Trinidad and Tobago in the instant case - Barbados has
displayed a minimum of courtesy in actually making a response to the Order of the
Court, that response is in the form of a claim that the State is exempt from the
Court’s jurisdiction, on the juridically incoherent ground that to obey any such order
would conflict with its Constitution. This is in direct antithesis to the precept
contained in Article 27 of the Vienna Convention: “A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.”
There is, unfortunately, no evidence that any of the Commonwealth
Caribbean States Parties to the Convention has taken action to meet the obligation set out in Article 2, “Domestic Legal Effects”, viz:
“Where the exercise of any of the rights or freedoms referred to in
Article 1 is not already ensured by legislative or other provisions, the
States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such
legislative or other measures as may be necessary to give effec to
those rights or freedoms.”
“Savings Clauses”
As the Court has found both in the instant case and, previously, in the Hilaire
case, Section 6 of the Trinidad and Tobago Constitution, the so-called “savings
clause”, (mirrored in similar constitutional provisions in the Commonwealth
Caribbean) has the effect of protecting from scrutiny in the national Courts certain
State acts that would otherwise be in breach of the fundamental rights provisions of
the said Constitution. However, by virtue of the principle set out in Article 26 of the
Vienna Convention, this does not exempt the State from its duty under international
law; to the extent that such a provision purports so to do, it constitutes a clear
breach of the relevant international obligations.

Countries that enter voluntarily and sovereignly into treaties cannot pick and
choose which treaty obligations to obey and which to flout. Even where reservations
are entered, it is clearly settled international law and practice that such reservations
must not be “incompatible with the object and purpose of the treaty”. (Vienna
Convention: Article 19).

Trinidad and Tobago has exercised its sovereign right to denounce and
withdraw from the Convention. No State, however, having committed itself to an
international agreement, can in good faith refuse to abide by those obligations which
it unambiguously undertook to honour during the period of the treaty’s validity. This
would make a mockery of international law and, in the particular case of human
rights treaties, would undermine a regime of international concern for the individual
human being that dates back at least to the Universal Declaration of Human Rights.
That there is emerging a clear tendency on the part of Commonwealth
Caribbean states in this dismal direction, with its implications for the integrity and
inclusiveness of the Inter-American system, is a matter of the very gravest concern.

Oliver Jackman
Judge
Pablo Saavedra Alessandri
Secretary

SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE

1. I have concurred with my vote in the adoption of the present Judgment of the
Inter-American Court of Human Rights in the Caesar versus Trinidad and Tobago case.
Given the relevant legal issues dealt with by the Court in its decision, as well as those
underlying it and those surrounding the present case, I feel obliged to leave on the
records my personal reflections on them as foundations of my position on the matter. I shall address, in the present Separate Opinion, the following points which I consider of
key importance, not only for a better understanding of the Court's decision in the
present Caesar case, but also for the handling of future cases in which such issues may
possibly also be raised: a) the humanization of the law of the treaties, as illustrated by
developments concerning interpretation of treaties, reservations to treaties,
denunciation of treaties, and termination and suspension of the operation of treaties; b)
international rule of law: non-appearance before an international tribunal and the duty
of compliance with its judgment; and c) the expanding material content and scope of
jus cogens in contemporary international law.

I. The Humanization of the Law of Treaties.

2. It is hardly surprising that basic considerations of humanity surround recently
emerged domains of international law, such as that of the international protection of
human rights. But the incidence of those considerations upon more traditional areas of
international law, which were in the past approached, almost invariably, from the angle
of the "will" of States, is indicative of the new times, and a new mentality centred
rather on the ultimate addressees of international norms, the human beings.

3. The law of treaties affords a pertinent illustration, disclosing that it is no longer
entirely at the mercy of the "will" of States and that it, too, acknowledges certain
superior common values that the international community as a whole deems should be
preserved. Pertinent examples can be found in such areas of the law of treaties
pertaining to interpretation of treaties, reservations to treaties, denunciation of
treations, and termination and suspension of the operation of treaties. I shall review,
however succinctly, each of them, before presenting my concluding observations on the
matter.

1. Considerations on the Interpretation of Treaties.
a) General Remarks.

4. When one comes to the interpretation of human rights treaties, as well as of
other international treaties, one is inclined to resort at first to the provisions enshrined
in Articles 31-33 of the two Vienna Conventions on the Law of Treaties (of 1969 and
1986, respectively), and in particular to the combination under Article 31 of the
elements of the ordinary meaning of the terms, the context, and the object and
purpose of the treaties at issue57. One then promptly finds that, in practice, while in
traditional law there has been a marked tendency to pursue a rather restrictive
interpretation which gives as much precision as possible to the obligations of States
Parties, in the international law of human rights, somewhat distinctly, there has been a
clear and special emphasis on the element of the object and purpose of the treaty, so
as to ensure an effective protection (effet utile)58 of the guaranteed rights.

5. Whilst in general international law the elements for the interpretation of treaties
evolved primarily as guidelines for the process of interpretation by States Parties
themselves, human rights treaties, in their turn, have called for an interpretation of
their provisions bearing in mind the essentially objective character of the obligations
ntered into by States Parties: such obligations aim at the protection of human rights
and not at the establishment of subjective and reciprocal rights for the States Parties.
Hence the special emphasis on the element of the object and purpose of human rights
treaties, of which the case-law of the two regional - the Inter-American and the
European - Courts of Human Rights gives eloquent testimony.

6. The interpretation and application of human rights treaties have been guided by
considerations of a superior general interest or ordre public which transcend the
individual interests of Contracting Parties. As indicated by the jurisprudence constante
of the two international human rights tribunals, those treaties are distinct from treaties
of the classic type, incorporating restrictively reciprocal concessions and compromises;
human rights treaties prescribe obligations of an essentially objective character,
implemented collectively by mechanisms of supervision of their own59. The rich caselaw
on methods of interpretation of human rights treaties has enhanced the protection
of the human person at international level and has enriched International Law under
the impact of the International Law of Human Rights.

7. The converging case-law to this effect has generated the commonunderstanding, in the regional (European and inter-American) systems of human rights
protection, that human rights treaties are endowed with a special nature (as
distinguished from multilateral treaties of the traditional type); that human rights
treaties have a normative character, of ordre public; that their terms are to be
autonomously interpreted; that in their application one ought to ensure an effective
protection (effet utile) of the guaranteed rights; that the obligations enshrined therein
do have and objective character, and are to be duly complied with by the tates
Parties, which have the additional common duty of exercise of the collective guarantee
of the protected rights; and that permissible restrictions (limitations and derogations)
to the exercise of guaranteed rights are to be restrictively interpreted. The work of the
Inter-American and European Courts of Human Rights has indeed contributed to the
creation of an international ordre public based upon the respect for human rights in all
circumstances60.

8. As I have pondered in my Separate Opinion in the Blake versus Guatemala case
(reparations, 1999) before the Inter-American Court of Human Rights, "(...) in so far as human rights treaties are concerned, one is to
bear always in mind the objective character of the obligations enshrined
therein, the autonomous meaning (in relation to the domestic law of the
States) of the terms of such treaties, the collective guarantee underlying
them, the wide scope of the obligations of protection and the restrictive
interpretation of permissible restrictions. These elements converge in
sustaining the integrity of human rights treaties, in seeking the fulfilment
of their object and purpose, and, accordingly, in establishing limits to
State voluntarism. From all this one can detect a new vision of the
relations between public power and the human being, which is summed
up, ultimately, in the recognition that the State exists for the human
being, and not vice-versa"61.

9. Another aspect to be here recalled is that of the autonomous meaning of the
terms of human rights treaties (as distinct from their meaning, e.g., in domestic law).
The point, stressed by the Human Rights Committee (under the U.N. Covenant on Civil
and Political Rights) in the adoption of its views in the Van Duzen versus Canada case
(in 1982), has also been taken up by the two regional - European and Inter-American -
Courts of Human Rights. The European Court has endorsed the doctrine of autonomous
interpretation in its judgments, for example, in the Ringeisen (1971), König (1978) and
Le Compte (1981 and 1983) cases. The Inter-American Court, in its turn, in its sixth
Advisory Opinion, on The Word "Laws" in Article 30 of the American Convention on
Human Rights (1986), clarified that the word "laws" in Article 30 of the American
Convention, to be examined in accordance not only with the principle of legality but
also with that of legitimacy, means a juridical norm of a general character, turned to
the "general welfare", emanated from the legislative organs constitutionally foreseen
and democratically elected, and elaborated according to the procedure for law-making
established by the Constitutions of States Parties.

10. Moreover, the dynamic or evolutive interpretation of the respective human
rights Conventions (the intertemporal dimension) has been followed by both the
European Court62 and the Inter-American Court63, so as to fulfil the changing needs of
protection of the human being; in its sixteenth and pioneering Advisory Opinion, on The
Right to Information on Consular Assistance in the Framework of the Guarantees of the
Due Process of Law (1999), which has inspired the international case-law in statu
nascendi on the matter, the Inter-American Court has clarified that, in its interpretation
of the norms of the American Convention, it should extend protection in new situations
(such as that concerning the observance of the right to information on consular
assistance) on the basis of pre-existing rights. The same vision has been propounded
by the Inter-American Court in its subsequent forward-looking eighteenth Advisory
Opinion, on the Juridical Condition and Rights of Undocumented Migrants (2003).

11. There is a converging case-law of the two regional Human Rights Courts - and
indeed of other human rights international supervisory organs - on this issue. Thus, the
European Court of Human Rights has reiteratedly pronounced to that effect64; in the
Loizidou versus Turkey case (1995), for example, the European Court expressly
discarded undue restrictions which would not only "seriously weaken" its role in the
discharge of its functions but "would also diminish the effectiveness of the Convention
as a constitutional instrument of European public order (ordre public)"65. The Inter-
American Court of Human Rights, on its part, has likewise repeatedly stressed the
object and purpose of human rights treaties and the objective character of the
obligations ensuing therefrom66, as well as the special character of human rights
treaties, as distinguished from multilateral treaties of the traditional type67.

12. Such convergence of views of the two regional Human Rights Courts on the
fundamental issue of the proper interpretation of human rights treaties naturally ensues
from the overriding identity of the object and purpose of those treaties. General
international law itself bears witness of the principle (apparently subsumed under the
general rule of interpretation of Article 31 of the two Vienna Conventions on the Law of
Treaties) whereby the interpretation is to enable a treaty to have appropriate effects68,
- a principle which has been resorted to against eventual calls for an unduly restrictive
interpretation. There is a jurisprudence constante pointing towards the restrictive
interpretation of provisions which limit or restrict the exercise of recognised human
rights69.

13. An aspect which in this respect should not pass unnoticed is that derogation
measures and limitations must not be inconsistent with the other obligations under
international law incumbent upon the State Party concerned: thus, neither derogation
clauses, nor limitation provisions, of a given human rights treaty, are to be interpreted
to restrict the exercise of any human rights protected to a greater extent by other
human rights treaties to which the State Party concerned is also a Party. Such
understanding finds support in the rule of international law whereby the interpretation
and application of a treaty cannot restrict a State's obligations ensuing from other
treaties on the subject - in the present case, human rights protection - to which the
State at issue is also a Party. In the present domain, international law has been made
use of in order to improve and strengthen - and never to weaken or undermine - the
protection of recognised human rights70.

14. The specificity of the international law of human rights finds expression not only
in the interpretation of human rights treaties in general but also in the interpretation of
specific provisions of those treaties. Pertinent illustrations can be found in, e.g.,
provisions which contain references to general international law. Such is the case, for
example, of the requirement of prior exhaustion of local remedies as a condition of
admissibility of complaints or communications under human rights treaties; the local
remedies rule bears witness of the interaction between international law and domestic
law in the present domain of protection, which is fundamentally victim-oriented,
concerned with the rights of individual human beings rather than of States. Generally
recognised principles or rules of international law - which the formulation of the local
remedies rule in human rights treaties refers to, - besides following an evolution of
their own in the distinct contexts in which they apply, necessarily suffer, when inserted
in human rights treaties, a certain degree of adjustment or adaptation71, dictated by
the special character of the object and purpose of those treaties and by the widely
recognised specificity of the international law of human rights72.

b) Procedural Issues.

15. Both the European and Inter-American Courts have rightly set limits to State
voluntarism, have safeguarded the integrity of the respective human rights
Conventions and the primacy of considerations of ordre public over the will of individual
States, have set higher standards of State behaviour and established some degree of
control over the interposition of undue restrictions by States, and have reassuringly
enhanced the position of individuals as subjects of the International Law of Human
Rights, with full procedural capacity. In so far as the basis of their jurisdiction in
there was no room for implied limitations (limitations implicites); the view has ever since prevailed that the
only limitations or restrictions permissible are those for which the human rights treaty itself makes express
provision. The obiter dicta of the Inter-American Court of Human Rights in its seventh Advisory Opinion, on
the Enforceability of the Right to Reply or Correction (1986) reinforce the necessarily restrictive interpretation
of restrictions to the exercise of rights recognised in human rights treaties.

16. The two international human rights Tribunals, by correctly resolving basic
procedural issues raised in the aforementioned cases, have aptly made use of the
techniques of public international law in order to strengthen their respective
jurisdictions of protection of the human person. They have decisively safeguarded the
integrity of the mechanisms of protection of the American and European Conventions
on Human Rights, whereby the juridical emancipation of the human person vis-à-vis
her own State is achieved. They have, furthermore, achieved a remarkable
jurisprudential construction on the right of access to justice (and of obtaining
reparation) at international level.

17. In its historical Judgment in the case, concerning Peru, of the massacre of
Barrios Altos (2001), e.g., the Inter-American Court warned that provisions of amnesty,
of prescription and of factors excluding responsibility, intended to impede the
investigation and punishment of those responsible for grave violations of human rights
(such as torture, summary, extra-legal or arbitrary executions, and forced
disappearances) are inadmissible; they violate non-derogable rights recognised by the
International Law of Human Rights. This case-law has been reiterated by the Court
(with regard to prescription) in its decision in the Bulacio versus Argentina case (2003).
c) Substantive Law.

18. As to substantive law, the contribution of the two international human rights
Courts to this effect is illustrated by numerous examples of their respective case-law
pertaining to the rights protected under the two regional Conventions. The European
Court has a vast and impressive case-law, for example, on the right to the protection of
liberty and security of person (Article 5 of the European Convention), and the right to a
fair trial (Article 6). The Inter-American Court has a significant case-law on the
fundamental right to life, comprising also the conditions of living, as from its decision in
the paradigmatic case of the so-called "Street Children" (Villagrán Morales and Others
versus Guatemala, Merits, 1999).

19. Yet another example can be recalled. The definition of the crime of torture found
today in two of the three co-existing Conventions against Torture (the U.N. Convention
of 1984, Article 1, and the Inter-American Convention of 1985, Article 2) owes its
contents to international human rights case-law, rather than to the tipification of the
crime of torture at domestic law level. In fact, the constitutive elements of torture in
the definition found in the two aforementioned Conventions73 ensue from the
jurisprudential construction of the old European Commission of Human Rights in the
Greek case (1967-1970), further discussed by the Commission and the European Court
in the Ireland versus United Kingdom case (1971-1978).

20. In this particular instance, international case-law influenced international
legislation in the field of human rights protection. The extensive case-law of the
European Court covers virtually the totality of the rights protected under the European
Convention and some of its Protocols. The growing case-law of the Inter-American
Court, in its turn, appears innovative and forward-looking with regard to the right to
life, reparations in its multiple forms, and provisional measures of protection, these
latter sometimes benefiting members of entire human collectivities74.2. Considerations on the Reservations to Treaties.

21. International supervisory organs in the domain of human rights protection have
in recent years disclosed their awareness - and, on some occasions, their determination
- to the effect of preserving the integrity of human rights treaties. It may be recalled
that, inspired in the criterion sustained by the International Court of Justice in its
Advisory Opinion of 1951 on the Reservations to the Convention against Genocide75,
the present system of reservations set forth in the two Vienna Conventions of the Law
of Treaties (of 1969 and 1986, Articles 19-23)76, in joining the formulation of
reservations to the acquiescence or the objections thereto for the determination of their
compatibility with the object and purpose of the treaties, is of a markedly voluntarist
and contractualist character.

22. Such a system leads to a fragmentation (in the bilateral relations) of the
conventional obligations of the States Parties to multilateral treaties, appearing
inadequate to human rights treaties, which are inspired in superior common values and
are applied in conformity with the notion of collective guarantee. That system of
reservations77 suffers from notorious insufficiencies when transposed from the law of
treaties in general into the domain of the International Law of Human Rights. To start
with, it does not distinguish between human rights treaties and classic treaties, making
abstraction of the jurisprudence constante of the organs of international supervision of
human rights, converging in pointing out that distinction.

23. It allows reservations (not objected) of a wide scope which threaten the very
integrity of human rights treaties; it allows reservations (not objected) to provisions of
these treaties which incorporate universal minimum standards (undermining, e.g., the
basic judicial guarantees of inviolable rights). If certain fundamental rights - starting
with the right to life - are non-derogable (in the terms of the human rights treaties
themselves), thereby not admitting any derogations which, by definition, are of an
essentially temporal or transitory character, - with greater reason, it would seem to
me, a fortiori they do not admit any reservations, perpetuated in time until and unless
withdrawn by the State at issue; such reservations would be, in my understanding,
without any caveat, incompatible with the object and purpose of those treaties.

24. Although the two Vienna Conventions on the Law of Treaties prohibit the
acceptance of reservations incompatible with the object and purpose of the treaty at
issue, they leave, however, various questions without answers. The criterion of the
compatibility is applied in the relations with the States which effectively objected to the
reservations, although such objections are often motivated by factors - including
political - other than a sincere and genuine concern on the part of the objecting States
with the prevalence of the object and purpose of the treaty at issue. For the same
reason, from the silence or acquiescence of the States Parties in relation to certain
reservations one cannot infer a belief on their part that the reservations are compatible
with the object and purpose of the treaty at issue.

25. Such silence or acquiescence, moreover, appears to undermine the application
of the criterion of the compatibility of a reservation with the object and purpose of the
treaty. And the two Vienna Conventions referred to are not clear either, as to the legal
effects of a non-permissible reservation, or of an objection to a reservation considered
incompatible with the object and purpose of the treaty at issue. They do not clarify,
either, who ultimately ought to determine the permissibility or otherwise of a
reservation, or to pronounce on its compatibility or otherwise with the object and
purpose of the treaty at issue.

26. The present system of reservations permits even reservations (not objected)
which hinder the possibilities of action of the international supervisory organs (created
by human rights treaties), rendering difficult the realization of their object and purpose.
The above-mentioned Vienna Conventions not only fail to establish a mechanism to
determine the compatibility or otherwise of a reservation with the object and purpose
of a given treaty78, but - even more gravely - do not impede either that certain
reservations or restrictions formulated (in the acceptance of the jurisdiction of the
organs of international protection)79 come to hinder the operation of the mechanisms of
international supervision created by the human rights treaties in the exercise of the
collective guarantee.

27. The present system of reservations, reminiscent of the old Pan-American
practice, rescued by the International Court of Justice80 and the two Vienna
Conventions on the Law of Treaties, for having crystallised itself in the relations
between States, not surprisingly appears entirely inadequate to the treaties whose
ultimate beneficiaries are the human beings and not the Contracting Parties.
Definitively, human rights treaties, turned to the relations between States and human
beings under their jurisdiction, do not bear a system of reservations which approaches
them as from an essentially contractual and voluntarist perspective, undermining their
integrity, allowing their fragmentation, leaving at the discretion of the Parties
themselves the final determination of the extent of their conventional obligations.

28. As the two Vienna Conventions of 1969 and 1986 do not provide any indication
for an objective application of the criterion of the compatibility or otherwise of a
reservation with the object and purpose of a treaty, they leave it, on the contrary, to be
applied individually and subjectively by the Contracting Parties themselves, in such a
way that, at the end, only the reserving State knows for sure the extent of the
implications of its reservation. Despite the efforts in expert writing to the effect of
systematizing the practice of States on the matter81, it is difficult to avoid the
impression that such practice has been surrounded by uncertainties and ambiguities,
and has remained inconclusive to date. This indefinition is not at all reassuring for
human rights treaties, endowed as they are with mechanisms of international
supervision of their own. This general picture of indefinition has thus, not surprisingly,
led the U.N. International Law Commission (ILC) to engage itself, as from 1998, in the
preparation of a Draft Practical Guide on Reservations to Treaties82 (cf. infra).

29. It calls the attention, for example, to find one's extensive list of reservations,
numerous and at times long, and often incongruous, of States Parties to the U.N.
Covenant on Civil and Political Rights83; and the practical problems generated by many
of the reservations (also numerous and not always consistent) of the States Parties to
the U.N. Convention on the Elimination of All Forms of Discrimination against Women
are well-known, - to what one may add the reservations to the U.N. Convention against
Torture and the Convention on the Elimination of All Forms of Racial Discrimination84.

30. With the persistence of the inadequacy and the insufficiencies of the present
system of reservations, it is not at all surprising that, firstly, multiple expressions of
dissatisfaction in this respect in contemporary legal doctrine (both in general studies on
the matter85 and in respect of specific human rights treaties86); and secondly, the
preparedness of human rights international supervisory organs to assert their
competence to apply by themselves the criterion of the compatibility (supra) and to
contribute thereby to secure the integrity of the respective human rights treaties.

31. At regional level, in its well-known judgment in the Belilos versus Switzerland
case (1988)87, locus classicus on the issue, the European Court of Human Rights
considered the declaration amounting to a reservation (of a general character) of
Switzerland to the European Convention on Human Rights incompatible with the object
and purpose of this latter (in the light of its Article 64). On its turn, the Inter-American
Court of Human Rights, in its second and third Advisory Opinions88, pointed out the
difficulties of a pure and simple transposition from the system of reservations of the
Vienna Convention on the Law of Treaties of 1969 into the domain of the international
protection of human rights.

32. At global level, in the I. Gueye et alii versus France case (1989), e.g., the
Human Rights Committee (under the U.N. Covenant on Civil and Political Rights), in
spite of a reservation ratione temporis of the respondent State89, understood that the
question at issue90 was justiciable under the Covenant91, and concluded that there was
a violation of Article 26 of the Covenant92. The same Committee, in its general
comment n. 24(52), of November 1994, warned that the provisions of the two Vienna
Conventions and the classic rules on reservations (based upon reciprocity) were not
appropriate to the human rights treaties; given the special character of the Covenant as
a human rights treaty, the question of the compatibility of a reservation with its object
and purpose, instead of being left at the discretion of the manifestations of the States
Parties inter se, should be objectively determined, on the basis of juridical principles, by
the Human Rights Committee itself93.

33. Given the specificity of the International Law of Human Rights, there appears a
strong case for leaving the determination of the compatibility or otherwise of
reservations with the object and purpose of human rights treaties with the international
supervisory organs established by them, rather than with the States Parties
themselves; it would be more in keeping with the special character of human rights
treaties. To the two international human rights tribunals (the European and Inter-
American Courts), the individualistic system of reservations does not seem to be in
keeping with the notion of collective control machinery proper to human rights treaties.
The obiter dicta of the two regional Human Rights Courts have been rendered despite
the fact that the European Convention (Article 64)94 and the American Convention
(Article 75) on Human Rights do not expressly confer this function upon them; the
American Convention, in fact, limits itself to referring to the pertinent provisions of the
1969 Vienna Convention on the Law of Treaties.

34. Given the uncertainties, ambiguities and lacunae in the present system of
reservations to treaties of the two Vienna Conventions of 1969 and 1986 (supra),
proposals have been advanced in contemporary doctrine95 tending at least to reduce
the tension as to the proper application of human rights treaties in the matter of
reservations, namely: first, the inclusion of an express indication in human rights
treaties of the provisions which do not admit any reservations (such as those pertaining
to the fundamental non-derogable rights), as an irreducible minimum to participate in
such treaties; second, as soon as the States Parties have proceeded to the
harmonization of their domestic legal order with the norms of those treaties (as
required by these latter), the withdrawal of their reservations to them96; third, the
modification or rectification, by the State Party, of a reservation considered nonpermissible
or incompatible with the object and purpose of the treaty97, whereby a
reservation would thus be seen no longer as a formal and final element of the
manifestation of State consent, but rather as an essentially temporal measure, to be
modified or removed as soon as possible; fourth, the adoption of a possible "collegial
system" for the acceptance of reservations98, so as to safeguard the normative
character of human rights treaties, bearing in mind, in this respect, the rare example of
the Convention on the Elimination of All Forms of Racial Discrimination99; fifth, the
elaboration of guidelines (although not binding) on the existing rules (of the two Vienna
Conventions of 1969 and 1986) in the matter of reservations, so as to clarify them in
practice100; and sixth, the attribution to the depositaries of human rights treaties of the
faculty to request periodic information from the reserving States on the reasons why
they have not yet withdrawn their reservations to such treaties.

35. The recent work (as from 1993) of the International Law Commission of the
United Nations on the topic of the Law and Practice Concerning Reservations to Treaties
tends to identify the essence of the question in the need to determine the powers of the
human rights international supervisory organs in the matter, in the light of the general
rules of the law of treaties101. This posture makes abstraction of the specificity of the
International Law of Human Rights, attaching itself to the existing postulates of the law
of treaties. The debates of 1997 of the International Law Commission focused
effectively on the question of the applicability of the system of reservations of the
Vienna Conventions in relation to human rights treaties. Although the point of view
prevailed that the pertinent provisions of those Conventions should not be modified102,
it was acknowledged that that system of reservations should be improved, given its
lacunae, above all in relation to non-permissible reservations103.

36. In the debates of the Commission, it was even admitted that the conventional
organs of protection of judicial character (the regional European and Inter-American
Courts of Human Rights) pronounce on the permissibility of reservations when
necessary to the exercise of their functions104; such considerations were reflected in the "Preliminary Conclusions on Reservations to Multilateral Normative Treaties Including
Human Rights Treaties", adopted by the Commission in 1997 (paragraphs 4-7)105. In
my understanding, there are compelling reasons to go further, and the relevant labour
of the ILC on the matter could lead to solutions satisfactory to human rights
international supervisory organs to the extent that it started from the recognition of the
special character of human rights treaties and gave precision to the juridical
consequences - for the treatment of the question of reservations - which ensue from
that recognition.

37. It seems unlikely, however, that it is prepared to pursue that approach. In its
more recent version of its Draft Guidelines on Reservations to Treaties (2003),
provisionally adopted by the ILC, it urged States and international organizations to "undertake a periodic review" of their reservations to treaties, and to "consider
withdrawing those which no longer serve their purpose"106, - though it did not pursue
the aforementioned approach. Such review, - added the ILC, - "should devote special
attention to the aim of preserving the integrity of multilateral treaties"107. Thus, draft
guideline 2.5.3 reflects the concerns of monitoring bodies ("particularly but not
exclusively in the field to human rights"), to call often upon States to reconsider their
reservations and if possible to withdraw them108. The ILC has conceded that "The reference to the integrity of multilateral treaties is an
allusion to the drawbacks of reservations, that may undermine the unity
of the treaty regime"109.

38. It may be pointed out that human rights treaties have in a way been singled out
when one comes to denunciation, and termination and suspension of the operation of
treaties; I see, thus, no epistemological or juridical reason why the same could not be
done also in relation to reservations. In my view, the conferment of the power of
determination of the compatibility or otherwise of reservations with the object and
purpose of human rights treaties on the international supervisory organs themselves
created by such treaties, would be much more in conformity with the special nature of
these latter and with the objective character of the conventional obligations of
protection110.

39. There is a whole logic and common sense in attributing such power to those
organs, guardians as they are of the integrity of human rights treaties, instead of
abandoning such determination to the interested States Parties themselves, as if they
were, or could be, the final arbiters of the scope of their conventional obligations111.
Such system of objective determination would foster the process of progressive
institutionalisation of the international protection of human rights112, as well as the
creation of a true international public order (ordre public) based on the full respect to,
and observance of, human rights. It is about time for the current process of
humanization of International Law113 to encompass likewise the domain of the law of
treaties, traditionally so vulnerable to manifestations of State voluntarism.

40. It is my understanding that, from the perspective of a minimally institutionalised
international community, the system of reservations to treaties, such as it still prevails
in our days, is rudimentary and rather primitive. There is pressing need to develop a
system of objective determination of the compatibility or otherwise of reservations with
the object and purpose of human rights treaties, although for that it may be considered
necessary an express provision in future human rights treaties, or the adoption to that
effect of protocols to the existing instruments114.

41. Only with such a system of objective determination will we succeed in guarding
coherence with the special character of human rights treaties, which set forth
obligations of an objective character and are applied by means of the exercise of the
collective guarantee. Only thus will we succeed to establish, in the ambit of the law of
treaties, standards of behaviour which contribute to the creation of a true international
ordre public based on the respect and observance of human rights, with the
corresponding obligations erga omnes of protection. We stand in need of the renovation
and humanization of the law of treaties as a whole, comprising also the forms of
manifestation of State consent.

42. I do not see how not to take into account the experience of international
supervision accumulated by the conventional organs of protection of human rights in
the last decades. Any serious evaluation of the present system of reservations to
treaties cannot fail to take into account the practice, on the matter, of such organs of
protection. It cannot pass unnoticed that the International Court of Justice, in its
already mentioned Advisory Opinion of 1951, effectively recognised, in a pioneering
way, the special character of the Convention for the Prevention and Punishment of the
Crime of Genocide of 1948, but without having extracted from its acknowledgement all
the juridical consequences for the regime of reservations to treaties.

43. Almost half a century having lapsed, this is the task which is incumbent upon
us, all of us who have the responsibility and the privilege to act in the domain of the
international protection of human rights. The words pronounced by the Hague Court in
1951 remain topical nowadays, in pointing out that, in a Convention such as that of
1948, adopted for a "purely humanitarian" purpose, "(...) the Contracting States do not have any interest of their
own; they merely have, one and all, a common interest, namely, the
accomplishment of those high purposes which are the raison d'être of
the Convention. Consequently, in a Convention of this type one cannot
speak of individual advantages and disadvantages to States, of the
maintenance of a perfect contractual balance between rights and duties.
The high ideals which inspired the Convention provide, by virtue of
the common will of the Parties, the foundation and measure of all its
provisions"115.

44. I see no sense in trying to try to escape from the acknowledgement of the
specificity of the International Law of Human Rights as a whole, the recognition of
which, in my understanding, in no way threatens the unity of Public International Law;
quite on the contrary, it contributes to develop the aptitude of this latter to secure, in
the present domain, compliance with the conventional obligations of protection of the
States vis-à-vis all human beings under their jurisdictions. With the evolution of the
International Law of Human Rights, it is Public International Law itself which is justified
and legitimised, in affirming juridical principles, concepts and categories proper to the
present domain of protection, based on premises fundamentally distinct from those
which have guided the application of its postulates at the level of purely inter-State
relations116.

45. One is not, therefore, here proposing that the development of the International
Law of Human Rights be brought about to the detriment of the law of treaties: my
understanding, entirely distinct, is in the sense that the norms of the law of treaties
(such as those set forth in the two above-mentioned Vienna Conventions, anyway of a
residual character) can greatly enrich with the impact of the International Law of
Human Rights, and develop their aptitude to regulate adequately the legal relations at
inter-State as well as intra-State levels, under the respective treaties of protection. In
sustaining the development of a system of objective determination - which seems to us
wholly necessary - of the compatibility or otherwise of reservations with the object and
purpose of human rights treaties in particular, in which the organs of international
protection created by such treaties would exert an important role, we do not see in that
any threat to the "unity" of the law of treaties.

46. Quite on the contrary, there could hardly be something more fragmenting and
underdeveloped than the present system of reservations of the two Vienna
Conventions, for which reason it would be entirely illusory to assume that, to continue
applying it as until now, one would thereby be fostering the "unity" of the law of
treaties. The true unity of the law of treaties, in the framework of Public International
Law, would be better served by the search for improvement in this area, overcoming
the ambiguities, uncertainties and lacunae of the present system of reservations,
through the development of a system of objective determination (supra), in conformity
with the special nature of human rights treaties and the objective character of the
conventional obligations of protection. The unity of Public International Law itself is
measured rather by its aptitude to regulate legal relations in distinct contexts with
equal adequacy and effectiveness.

3. Considerations on the Denunciation of Treaties.

47. The two Vienna Conventions on the Law of Treaties (1969 and 1986) determine
that a treaty which contains no provision on denunciation is not subject to
denunciation, unless it can be established that the parties intended to admit the
possibility of denunciation of that this latter "may be implied by the nature of the
treaty" (Article 56(1)). The two Vienna Conventions thus open the way to the taking
into account of the nature or specificity of certain treaties. As already seen, the special
nature of treaties of a humanitarian character (such as human rights treaties) has
indeed been taken into account, and has been widely acknowledged. Accordingly,
certain limits have been established with regard to the denunciation of such treaties.

48. In fact, basic considerations of humanity have permeated also the clauses of
denunciation of certain treaties. This is aptly illustrated, e.g., by the provisions on
denunciation of the four Geneva Conventions on International Humanitarian Law of
1949. According to those provisions (common Article 63/62/142/158), the
denunciation, which will take effect one year after its notification, shall not, however,
while the denouncing power is engaged in a conflict, take any effect "until peace has
been concluded", and until the "operations connected with the release and repatriation
of the persons protected" by the Geneva Conventions "have been terminated". In this
way, the obligations of the Parties as to the safeguard of the persons protected under
those Conventions subsist, in whatever circumstances, vis-à-vis the denouncing power,
while the conflict lasts and the release and repatriation of the persons protected are not
concluded117.

49. Furthermore, the denunciation provisions of the aforementioned four Geneva
Conventions (common Article 63/62/142/158) expressly preserves the obligations
based on "the principles of the law of nations" as they result from "the laws of
humanity" and "the dictates of the public conscience" (the Martens clause). Such
obligations, as aptly remarked by B.V.A. Röling, continue governing human conduct
even when treaties are no longer binding118, - contrary to, I would add, what positivists
would mechanically argue. As I have sustained at length in my Concurring Opinion in
this Court's Advisory Opinion n. 18 on the Juridical Condition and Rights of
Undocumented Migrants (2003), the law of protection of the human being does not
exhaust itself in the norms and rules of positive law, it encompasses likewise the
principles (which inform and conform those norms and rules), without which there is no
legal system at all.

50. Half a decade after the adoption of the 1969 Vienna Convention on the Law of
Treaties, H.W. Briggs pertinently pointed out that the consideration of that Convention
in international case-law "has been helpful in furthering the consolidation of the law
against unilateral denunciation of international agreements without
accountability therefore"119.
The 1984 U.N. Convention against Torture, in this line of concern, provides (Article
31(2)) that a denunciation of it shall not have the effect of releasing the denouncing
Party from its obligations under the Convention with regard to "any act or omission
which occurs prior to the date at which the denunciation becomes effective", nor shall
the denunciation prejudice in any way the "continued consideration" of any matter
already under scrutiny by the U.N. Committee against Torture "prior to the date at
which the denunciation becomes effective".

51. At regional level, the European Convention on Human Rights, as amended by
Protocol n. 11, provides (Article 58) likewise that a denunciation of it shall not have the
effect of releasing the denouncing Party from its obligations under the Convention in
respect of "any act which, being capable of constituting a violation of such obligations,
may have been performed by it before the date at which the denunciation became
effective". On its turn, in a similar line of thinking, the 1999 Inter-American Convention
on the Elimination of All Forms of Discrimination against Persons with Disabilities
determines (Article XIII) that a denunciation of it "shall not exempt" the State Party
from the obligations imposed upon it under the Convention in respect of "any action or
omission prior to the date on which the denunciation takes effect".

52. And the American Convention on Human Rights (Article 78) only admits
denunciation "at the expiration of a five-year period from the date of its entry into
force", and by means of "notice given one year in advance". Moreover, such a
denunciation shall not have the effect of releasing the denouncing State Party from the
obligations contained in the Convention with respect to "any act that may constitute a
violation of those obligations" and that "has been taken by that State prior to the
effective date of denunciation". The issue of the effects of denunciation, within such
limits, became a central one in recent cases concerning Trinidad and Tobago under the
American Convention on Human Rights.

53. Trinidad and Tobago became a Party to the American Convention on Human
Rights on 28.05.1991, and accepted the Inter-American Court's jurisdiction in
contentious matters on that same date. Later on, on 26.05.1998, it denounced the
American Convention; pursuant to Article 78 of the Convention, such denunciation
began to have effects one year later, on 26.05.1999. One day before this date the
Inter-American Commission on Human Rights filed before the Court the Hilaire case;
subsequently, after that date, it lodged with the Court the Constantine et allii case (on
22.02.2000) and the Benjamin et allii case (on 05.10.2000), - the three of them
concerning Trinidad and Tobago.

54. As they pertained to acts taken by that State prior to the date of its
denunciation, the Court retained jurisdiction and took cognizance of the cases
(pursuant to Article 78(2) of the Convention), and rendered its Judgments on
preliminary objections in the three cases on 01.09.2001, dismissing an undue
restriction formulated by the State in its instrument of acceptance of the Court's
compulsory jurisdiction (reiterated in the three cases in the form of a preliminary
objection). That restriction would have limited the Court's jurisdiction to the extent that
its exercise would be consistent with the national Constitution; the Court considered it
incompatible with the object and purpose of the Convention, and an attempt to
subordinate this latter to the national Constitution, what would be inadmissible120.

55. The Court then ordered the joinder of the three cases and their respective
proceedings (on 30.11.2001), and delivered its Judgment on the merits, finding
violations of the American Convention, on 21.06.2002. Parallel to that, also after the
denunciation by Trinidad and Tobago became effective (on 26.05.1999), the Court
ordered successive Provisional Measures of Protection, from 27.05.1999 to 02.12.2003,
in the case James et allii versus Trinidad and Tobago (as they also pertained to acts
taken by the State prior to the date of its denunciation of the Convention). All these
decisions of the Court remain binding upon the respondent State; its denunciation of
the Convention does not have the sweeping effect that one might prima facie tend to
assume, as the denunciation clause under the American Convention (supra) was
surrounded by temporal limitations so as not to allow it to undermine the protection of
human rights thereunder.

56. Thus, not even the institution of denunciation of treaties is so absolute in effects
as one might prima facie tend to assume. Despite its openness to manifestations of
State voluntarism, denunciation has, notwithstanding, been permeated with basic
considerations of humanity as well, insofar as treaties of a humanitarian character are
concerned. Ultimately, one is here faced with the fundamental, overriding and
inescapable principle of good faith (bona fides), and one ought to act accordingly.

4. Considerations on the Termination and Suspension of the
Operation of Treaties.

57. The interpretation and application of human rights treaties bear witness of the
twilight of reciprocity and of the prominence of considerations of ordre public in the
present domain. In fact, the prohibition of the invocation of reciprocity as a subterfuge
for non-compliance with humanitarian conventional obligations, is corroborated in
unequivocal terms by the 1969 Vienna Convention on the Law of Treaties, which, in
providing for the conditions in which a breach of treaty may bring about its termination
or suspension of its operation, excepts expressly and specifically the "provisions
relating to the protection of the human person contained in treaties of a humanitarian
character" (Article 60(5)).

58. The provision of Article 60(5) of the two Vienna Conventions on the Law of
Treaties (1969 and 1986), acknowledging the special nature of "treaties of a
humanitarian character" and setting forth one of the juridical consequences ensuing
therefrom, constitutes a safeguard clause in defence of the human person. In this
sense I saw it fit to point out, in a study on the matter published 14 years ago, that "the law of treaties itself of our days, as confirmed by Article
60(5) of the Vienna Convention [on the Law of Treaties], discards the
precept of reciprocity in the implementation of the treaties of
international protection of human rights and of International
Humanitarian Law, by virtue precisely of the humanitarian character of
those instruments. Piercing the veil in a domain of international law -
such as the one concerning treaties - so strongly infiltrated by the
voluntarism of States, the aforementioned provision of Article 60(5) of
the Vienna Convention de Viena constitutes a clause of
safeguard in defence of the human being"121.

60. Thus, the contemporary law of treaties itself, as attested by Article 60(5) of the
1969 and the 1986 Vienna Conventions, overcoming the precept of reciprocity in the
implementation of treaties of a humanitarian character, reckons that the obligations
enshrined therein are of ordre public, and may generate effects erga omnes. The
overcoming of reciprocity in human rights protection has taken place amidst the
constant search for an expansion of the ambit of protection (for the safeguard of an
increasingly wider circle of individuals, in any circumstances), for achieving a higher
degree of the protection due, and for the
gradual strengthening of the mechanisms of supervision, in the defense of common
superior values.

5. Concluding Observations.

61. Last but not least, attention should also be drawn to the interaction of human
rights treaties in the process of interpretation. Given the multiplicity of those treaties, it
comes as little or no surprise that the interpretation and application of certain
provisions of a given human rights treaty have at times been resorted to as orientation
for the interpretation of corresponding provisions of another - usually newer - human
rights treaty. The practice of international supervisory organs - including under the two
regional, European and Inter-American, systems of protection - affords several
examples of such interpretative interaction124.

62. Moreover, given the possible concurrent interpretation of equivalent provisions
of two or more human rights treaties, there is room for the search of the most
favourable norm to the alleged victim. This test - primacy of the most favourable norm
to the individual, - gathers express support in certain provisions of such human rights
treaties such as Article 29(b) of the American Convention on Human Rights, and has
found application in practice.

63. The essential motivation underlying the interpretation of human rights treaties
has been, rather than to ensure the uniformity of international law in general and in all
circumstances whatsoever, to respond effectively to the needs and imperatives of the
international protection of human beings. In proceeding in this way, international
supervisory organs - such as the two regional Human Rights Courts - have constructed
a converging jurisprudence as to the special nature of human rights treaties and the
implications and consequences ensuing therefrom. This has been largely due to the
overriding identity of the object and purpose of those treaties. The reassuring result
has been a uniform interpretation of the International Law of Human Rights. This, in
turn, has contributed significantly to the development of international law in the
present domain of protection.

64. Thus, a chapter of international law usually approached in the past from the
outlook of State voluntarism, comes nowadays to be seen in a different light, under the
influence of basic considerations of humanity. Although this chapter of international
law, - the law of treaties, - has been opened to manifestations of the individual "will" of
States, as from the issue of the treating-making power itself, - the fact cannot keep on
being overlooked that basic considerations of humanity have marked their presence
also in the law of treaties. As demonstration of this evolution, developments pertaining
to the interpretation of treaties, reservations to treaties, denunciation of treaties, and
termination and suspension of operation of treaties disclosed a certain preparedness to
elaborate freely on areas such as those, so as to search for responses to the
contemporary needs of the international community.

65. Like International Law in general, the law of treaties in particular is undergoing
a historical process of humanization as well. It cannot pass unnoticed, as timely
recalled by Egon Schwelb three decades ago125, that the preambles themselves of the
two Vienna Conventions on the Law of Treaties (of 1969 and 1986) contain an assertion
of the principle of universal respect for, and observance of, human rights126. The treatymaking
power is no longer an exclusive prerogative of States, as it used to be in the
past; the 1986 [second] Vienna Convention on the Law of Treaties came to address the
treaty-making of international organizations, some of which devoted to causes of direct
interest to human beings and humankind as a whole.

66. The interpretation of treaties has been considerably enriched by the
methodology pursued by international supervisory organs of human rights treaties.
Such interpretation has adjusted itself to the specificity of human rights treaties127. It
has, moreover, favoured a harmonization of the standards of implementation of the
protected rights in the domestic legal order of the States Parties to those treaties128.
The two international human rights Tribunals (the European and Inter-American
Courts) have been engaged in a converging jurisprudential construction in respect of
reservations to treaties to the effect of avoiding to deprive human rights treaties of
their effet utile, thus preserving the mechanisms of protection of the human person
established by them.

III. International Rule of Law: Non-Appearance and the Duty
of Compliance.

67. Until the Inter-American Court's Judgments of 01.09.2001 dismissing Trinidad
and Tobago's preliminary objections in the Hilaire, Constantine et allii, and Benjamin et
allii cases (cf. supra), the respondent State appeared before the Court, having
participated in the contentious proceedings and presented its arguments before the
Court. In the Hilaire case, in particular, it appeared before the Court in the public
hearing of 10 August 2000, wherein it submitted its views in an orderly and
procedurally constructive way. After being notified of the Court's adverse decision,
Trinidad and Tobago no longer appeared before the Court, neither in the proceedings
on the merits in the aforementioned cases (joined), nor in the proceedings of the
subsequent and present Caesar case.

68. Despite its non-appearance129, Trinidad and Tobago remains bound by the
Court's Judgments in all these cases: though rendered after its denunciation of the
American Convention, they pertain to acts taken by the State before the denunciation,
in accordance with the terms of Article 78 of the American Convention. Together with
the subsequent Judgments on the merits and reparations, the Court's decisions remain
all binding upon the respondent State, and an eventual failure of this latter to comply
with the Court's Judgments on the merits and reparations in those previous cases and
with the present Judgment in the Caesar case, would amount to an additional violation
of the American Convention (Article 68), as well as of general international law (pacta
sunt servanda), with all the juridical consequences attached thereto.

69. Any interpretation to the contrary, tending to "explain" or "justify" noncompliance
with the Judgments, would amount to contempt of Court, and disclose a
lack of familiarity with the most elementary principles of international legal procedure
A State may, of course, choose not to appear before the Court, but in doing so it ought
to bear the consequences of such non-appearance, rendering itself unable to rebut the
evidence produced130 and to defend itself. What a State is not entitled to do is to ignore
a Judgment that is clearly binding upon it, as that would undermine the very
foundations of international jurisdiction, which have required so much endeavour from
past generations to be built and established in this part of the world.

70. Having always been a strong supporter of the cause of international justice, I
feel obliged to state in the present Separate Opinion that international jurisdiction
cannot be left at the mercy of the caprice of governments, usually under the pressure
of haphazard domestic factors, - and those who have no constraints to undermine it are
to bear the historical responsibility for such deconstruction. I feel confident that
Trinidad and Tobago will not come to this extreme.

71. Trinidad and Tobago seems to be aware of the temporal and material limitations
of denunciation under Article 78 of the American Convention (supra), as it participated
in proceedings before the Court afterwards, including a public hearing of 10 August
2000 in the Hilaire case, more than one year after its denunciation of the American
Convention began to have effects (as from 26.05.1999). What is rather enigmatic is its
subsequent and prolonged non-appearance - not to say "disappearance" - before the
Court after its Judgments on preliminary objections (supra), adverse to it. Nonappearance
does not at all pave the way for non-compliance. A State may choose not
to appear before the Court, at any stage of the proceedings, at its own risk, but it
cannot ignore the Court's Judgment without having its international responsibility
thereby engaged.

72. Trinidad and Tobago's sudden non-appearance before the Court, - or rather,
disappearance from it, - is certainly to be regretted. It does not foster the rule of law at
international level, to say the least. If it is meant to be a prior notice of eventual noncompliance
with decisions of the Court, then the respondent State has strong reasons
for concern, as the Law would not stand on its side. Let us hope this will prove not to
be the case. But were it to be so, Trinidad and Tobago would then stand outside the
Law, thus incurring into an additional violation of the American Convention.

73. Although non-appearance has occurred from time to time in inter-State litigation
(e.g., before the Permanent Court of International Justice [PCIJ] and the International
Court of Justice [ICJ])131, there is no compelling reason why it should take place in
proceedings in human rights cases, opposing States to individuals, the ostensibly
weaker party. If by non-appearance the State is announcing eventual non-compliance
with the decisions of the Tribunal, it should bear the juridical consequences of its
attitude, - and the other States Parties should react to that, in the exercise of the
collective guarantee underlying all human rights treaties. Non-appearance does not
affect the condition of the State as a party to the case; whether it likes it or not, it
remains the respondent State in the case, even in absentia.

74. Article 68(1) of the American Convention is clear in determining that "the States
Parties to the Convention undertake to comply with the judgment of the Court in any
case to which they are parties". Non-appearing States remain parties to the cases at
issue. Their duty of compliance corresponds to a basic principle of the law on the
international responsibility of the State, strongly supported by international case-law,
whereby States ought to comply with their conventional obligations in good faith (pacta
sunt servanda).
It is somewhat surprising to witness that, as time goes by and the old ideal of
the realization of international justice gains ground (as with, for example, the recent
establishment of the International Criminal Court, pursuant to an original proposal by
Trinidad and Tobago at the United Nations), some States remain resistant to the
operation of the most perfected means of settlement of disputes at international level,
that is, judicial settlement132 (as illustrated, ironically, by the posture of Trinidad and
Tobago in the aforementioned cases in the inter-American human rights system).

76. The precedent - among others - set up by the United States, of "withdrawal"
and non-appearance before the ICJ, after a Judgment adverse to it on preliminary
objections (in 1984) in the Nicaragua versus United States case, would be a very bad
example for Trinidad and Tobago to follow. On the occasion, the United States earned
much criticism from distinct corners of the international community, including from
some of its own most distinguished jurists (like the late Keith Highet133), for its
disservice to the international rule of law. In the words of K. Highet, the strategy of
non-appearance "may also backfire", and "may suffer a setback, once its absurdity and overall uselessness
are correctly perceived. (...) The negative forces undermining the
progressive development of international law - non-production, noncooperation
and non-appearance - (...) will now be seen for what they
are"134.

77. In the same line of thinking, it was further pointed out, in other commentaries,
that the United States' defiant behaviour of withdrawing from that case and no longer
appearing in its proceedings before the ICJ "appears not only injurious to the efficacy of the Court's
compulsory jurisdiction under Article 36(2), but detrimental to the
development of international lawfulness as well. Such lawfulness cannot
develop as long as States are inclined to place themselves above the
law"135.

78. Is this the sad example that Trinidad and Tobago would really wish to follow? I
could hardly believe it. How would that appear to the future generations of its own
jurists? Expectations from the new generations of jurists are always high, - hoping that
they will succeed to right the wrongs made by their predecessors, - while, on the other
hand, politicians (also referred to rather elegantly as "decision-makers") look the same
everywhere in the world, and there seem to be no compelling reasons to expect much
from them.

79. Not only do they look the same everywhere, but they have further looked the
same at all times. Already over three centuries before our era, in his Nicomachean
Ethics, Aristotle could hardly hide or dissimulate his concern as to what politicians might
be thinking or what decisions were they about to take136. In the XIIIth. century, in his
Treatise on the Law, Thomas Aquinas wondered whether the recta ratio could ever be
apprehended by the power-holders137. It would be hard to deny that, with extremely
rare exceptions, politicians, always and everywhere, have appeared much more
engaged in gaining and retaining power (for power's sake), than in securing the
observance of the human rights of those they govern or are supposed to represent.

80. The States which, in the history of international adjudication, have "withdrawn"
from contentious proceedings instituted against them (particularly after an initial
decision of the Tribunal adverse to them), have adopted a "self-judging conduct",
harmful to the international rule of law, and, ultimately, also to themselves, to their
own reputation, as "A State which would be a judge in its own cause is an advocate
pleading into a void from which no clear answer is returned"138.

81. Non-appearance is in fact foreseen in Article 53 of the Statute of the ICJ, its
raison d'être being to secure that the Court carries out its functions whenever one of
the parties fails to appear before it; the non-appearing State remains a party to the
case, and remains fully bound by the decision rendered by the Court139 (as if it had
appeared before the Court). This is what ensues also from Article 27 (on default
procedure) of the current Rules of Procedure of the Inter-American Court, which
likewise foresee non-appearance in the same understanding, and entitle the Inter-
American Court, whenever a party fails to appear in or continue with a case, to take
such measures, on its own motion, as may be necessary to complete the consideration
of the case. Article 27 adds that when a party enters a case at a later stage of the
proceedings, it shall take up the proceedings at that stage.

82. In most cases, non-appearance has been resorted to aiming at exerting
pressure upon the complaining party and the Court, but experience shows that nonappearing
States have hardly gained anything - except criticisms - from such harmful
conduct140. Furthermore, it is to be kept always in mind that non-appearance and non-
compliance are not synonymous at all; non-appearing - or "disappeared" - States are
under the duty to comply with Judgments in absentia (pacta sunt servanda).

83. On this particular subject, the Institut de Droit International adopted a clarifying
resolution141 in its session of Basel of 1991, in which it took into account the difficulties
that non-appearance of a party may present to the other party and to the Court
itself142. In its preamble, the resolution pondered inter alia that "the absence of a party
is such as to hinder the regular conduct of the proceedings, and may affect the good
administration of justice"143. The resolution recalled, in its operative part, the State's "duty to cooperate in the fulfilment of the Court's judicial functions" (Article 2), and
added that "Each State entitled (...) to appear before the Court and with
respect to which the Court is seized of a case is ipso facto (...) a party to
the proceedings, regardless of whether it appears or not" (Article 1).

84. The resolution of the Institut further provided that, notwithstanding the nonappearance
of a State, this latter remains "bound by any decision of the Court in that case, whether on
jurisdiction, admissibility or the merits" (Article 4). And the resolution concluded that "a State's non-appearance before the Court is in itself
no obstacle to the exercise by the Court of its functions" (Article 5). This is an accurate
statement of the applicable law in cases of non-appearance, which by no means can be
taken to lead to non-compliance, amounting to an additional violation of international
law.

IV. The Expanding Material Content and Scope of Jus Cogens in
Contemporary International Law.

85. May I conclude this Separate Opinion in the present Caesar case in a positive
tone, with an expression of support for the present Judgment in absentia of the Inter-
American Court, in respect particularly to two remaining aspects that I see it fit to dwell
upon here. Firstly, the Court has expressly and rightly admitted in the present Caesar
case that, in certain circumstances, the existence of a law (such as that of Corporal
Punishment Act of Trinidad and Tobago), manifestly incompatible with the relevant
provisions of the American Convention (Article 5(1) and (2)), may per se constitute -
by its nature and effects - a violation of this latter144. In support of this view, may I
refer to my arguments, to this effect, in my Dissenting Opinion in the El Amparo case,
concerning Venezuela (Judgments on reparations, of 14.09.1996), as well as in my
Dissenting Opinion in the Caballero Delgado and Santana case, pertaining to Colombia
(Judgment on reparations, of 29.01.1997), - which I do not find it necessary to
reiterate literally herein.

86. Secondly, and most importantly, in the present Judgment in the Caesar case,
the Court has rightly acknowledged that the prohibition of torture as well as of other
cruel, inhuman and degrading treatment, has entered into the domain of jus cogens.
Corporal punishment, such as the one examined in the cas d'espèce, is per se in breach
of the Convention (Article 5(1) and (2)) and of peremptory norms of international law
(paragraphs 70, 88 and 100). In several of my Individual Opinions presented in this
Court, I have drawn attention to the relevance of the expanding material content and
scope of jus cogens. The present Judgment is inserted into this reassuringly evolutive
jurisprudential construction.

87. Thus, in its historical Advisory Opinion n. 18 on The Juridical Condition and the
Rights of the Undocumented Migrants (of 17.09.2003), the Inter-American Court
significantly held that the aforementioned fundamental principle of equality and nondiscrimination,
in the present stage of evolution of International Law, "has entered into
the domain of the jus cogens"; on such principle, which "permeates every legal order",
- the Court correctly added, - "rests the whole juridical structure of the national and
international public order"145. The Court, moreover, referred to the evolution of the
concept of jus cogens, transcending the ambit of both the law of treaties and of the law
of the international responsibility of the State, so as to reach general international law
and the very foundations of the international legal order146.

88. In support of this view, in my Concurring Opinion in that pronouncement of the
Court (Advisory Opinion n. 18), after summarizing the history of the entry of jus cogens
into the conceptual universe of international law, I maintained that "The emergence and assertion of jus cogens in contemporary
International Law fulfil the necessity of a minimum of verticalization in
the international legal order, erected upon pillars in which the juridical
and the ethical are merged. (...)

On my part, I have always sustained that it is an ineluctable
consequence of the affirmation and the very existence of peremptory
norms of International Law their not being limited to the conventional
norms, to the law of treaties, and their being extended to every and any
juridical act147. Recent developments point out in the same sense, that
is, that the domain of the jus cogens, beyond the law of treaties,
encompasses likewise general international law148. Moreover, the jus
cogens, in my understanding, is an open category, which expands itself
to the extent that the universal juridical conscience (material source of
all Law) awakens for the necessity to protect the rights inherent to each
human being in every and any situation".

To the international objective responsibility of the States
corresponds necessarily the notion of objective illegality (one of the
elements underlying the concept of jus cogens). In our days, no one
would dare to deny the objective illegality of acts of genocide149, of
systematic practices of torture, of summary and extra-legal executions,
and of forced disappearance of persons, - practices which represent
crimes against humanity, - condemned by the universal juridical
conscience150, parallel to the application of treaties. Already in its
Advisory Opinion of 1951 on the Reservations to the Convention against
Genocide, the International Court of Justice pointed out that the
humanitarian principles underlying that Convention were recognizedly
`binding on States, even without any conventional obligation'.
(...) In sum and conclusion on the point under examination, the
emergence and assertion of jus cogens evoke the notions of
international public order and of a hierarchy of legal norms, as well as
the prevalence of the jus necessarium over the jus voluntarium; jus
cogens presents itself as the juridical expression of the very
international community as a whole, which, at last, takes conscience of
itself, and of the fundamental principles and values which guide it"151.

89. In the same line of reasoning, in my Separate Opinion in the case of the
Massacre of Plan de Sánchez case, concerning Guatemala (Judgment of 29.04.2004), I
saw it fit to insist on the point that "The concept itself of jus cogens, in my understanding,
transcends the ambit of both the law of treaties152 and the law on the
international responsibility of the States153, so as to encompass general
international law and the very foundations of the international legal
order"154.

90. And in my Separate Opinion in the Tibi versus Ecuador case (Judgment of
07.09.2004), I allowed myself to add that jus cogens, besides its horizontal dimension
whereby it has a bearing upon the very foundations of international law, also expands
itself in "a vertical dimension, of the interaction of the international and
national legal orders in the present domain of protection. The effect of
jus cogens, in this second (vertical) plane, is in the sense of invalidating
every and any legislative, administrative or judicial measure which, at
the level of the domestic law of the States, attempts to authorize or
tolerate torture" (par. 32).

91. Furthermore, in its Judgment of 08.07.2004 in the Gómez Paquiyauri versus
Peru case, the Inter-American Court expressly admitted that, in our days, an
international juridical regime has been formed of absolute prohibition of all forms of
torture and of extrajudicial executions, and that such prohibition belongs today to the
domain of international jus cogens (pars. 115-116 and 131)155. In my Separate Opinion
in that case I pondered that such acknowledgement of jus cogens, in constant
expansion, in turn, "reveals precisely the reassuring opening of contemporary
international law to superior and fundamental values", pointing towards the emergence
of a truly universal international law (par. 44). I reaffirmed this understanding, of an
absolute prohibition, of jus cogens, of torture, in any circumstance, in my Separate
Opinion (par. 26) in the Tibi versus Ecuador case (Judgment of 07.09.2004).

92. The Judgment this Court has just adopted in the present Caesar versus Trinidad
and Tobago fits squarely into its jurisprudence constante on the evolutive interpretation
of jus cogens itself. The Court, here, quite rightly takes a step forward, in upholding the
absolute prohibition, proper to the domain of jus cogens, of torture as well as any other
cruel, inhuman and degrading treatment. It is relevant to keep on identifying the
expanding material content and scope of jus cogens, as the Inter-American Court has
been doing in the last years. The Inter-American Court has probably done for such
identification of the expansion of jus cogens more than any other contemporary
international tribunal. It is important that it continues doing so, in the gradual
construction, at this beginning of the XXIst. century, of a new jus gentium, the
international law for humankind.

1 The present Judgment is delivered according to the terms of the Court’s Rules of Procedure
approved by the Inter-American Court of Human Rights during its XLIX Ordinary Period of Sessions by
Order of November 24, 2000, which entered into force on June 1, 2001, and according to the partial
amendment approved by the Court during its LXI Ordinary Period of Sessions by Order of November 25,
2003, which entered into force on January 1, 2004.

2 The 2000 amendment of the Corporal Punishment Act (Offenders Over Sixteen) provides that this law may be administered only to male offenders over the age of 18, so it changed its name to “Corporal Punishment Act (Offenders Over Eighteen)” (infra para. 49(9)).

14 Universal Declaration of Human Rights (Article 5); American Declaration of the Rights and Duties
of Man (Article 1); International Covenant on Civil and Political Rights (Article 7); European Convention for
the Protection of Human Rights and Fundamental Freedoms (Article 3); African Charter of Human and
Peoples’ Rights (Article 5) and Arab Charter of Human Rights (Article 13).

17 "Questions of the Human Right of all Persons subjected to any form of detention or
imprisonment, in particular: torture and other Cruel, Inhuman or Degrading Treatment or Punishment".
Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human
Rights res. 1995/37 B, 10 January 1997, E/CN.4/1997/7.

21 Eur. Court H.R., Tyrer v. United Kingdom, (5856/72), Judgment of April 25, 1978, Series A No.
26, para. 33. In the Case of A v. United Kingdom, the European Court similarly found that the beating of a
nine year-old boy with a garden cane, which had been applied with considerable force on more than one
occasion, constituted a violation of Article 3 of the European Convention (Eur. Court H.R., A v. United
Kingdom, (100/1997/884/1096), Judgment of September 23, 1998). For its part, the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has
specified that domestic laws providing for corporal punishment were "in flagrant contradiction with
European Prison Rules, and generally grossly outdated" or are "clearly no longer acceptable by modernday
standards (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment, Report to the Maltese Government on the visit to Malta (CPT) from July 1 to 19, 1990,
October 1, 1992, CPT/Inf (92) 5, at 16 and 23).

22 With respect to norms applicable in international armed conflicts, the Third Geneva Convention of
August 12, 1949 relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force
October 21, 1950, Art. 87 (3), 89 and 108. The Fourth Geneva Convention of August 12, 1949 relative to
the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force October 21, 1950,
Arts. 32, 118 and 119. More generally, Article 75 of Additional Protocol I to the Geneva Conventions
provides that corporal punishment is and shall remain prohibited at any time and in any place whatsoever,
whether committed by civilian or by military agents (Protocol Additional to the Geneva Conventions
Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3,
entered into force Dec. 7, 1978, Art. 75 (2) (b). See also Art. 11(4). In the case of non-international
armed conflicts, Article 4 of the Additional Protocol II to the Geneva Conventions prohibits corporal
punishment at any time and in any place whatsoever (Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),
June 8, 1977).

29 Cf., in the same vein, Tyrer v. United Kingdom, supra note 21. In this regard, the Special
Rapporteur on Torture of the United Nations Commission on Human Rights (supra note 17) has noted that
“[…] the ‘lawful sanctions’ exclusion must necessarily refer to those sanctions that constitute practices
widely accepted as legitimate by the international community, such as deprivation of liberty through
imprisonment, which is common to almost all penal systems. […] By contrast, the Special Rapporteur
cannot accept the notion that the administration of such punishment as stoning to death, flogging and then amputation […] can be deemed lawful simply because the punishment has been authorized in a procedurally legitimate manner, i.e. through the sanction of legislation, administrative rules or judicial order. To accept this view would be to accept that any physical punishment, no matter how torturous and cruel, can be considered lawful, as long as the punishment had been duly promulgated under the domestic law of a State. Punishment is, after all, one of the prohibited purposes of torture. […] Indeed, cruel, inhuman or degrading punishment are, then, by definition unlawful; so they can hardly qualify as ‘lawful sanctions’ within the meaning of Article 1 of the Convention against Torture”.

30 Affidavit of Winston Caesar, sworn on October 23, 2002 (Exhibits to the Application of the Inter-
American Commission, Exhibit 4).

33 United Nations’ Principles of Medical Ethics relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, G.A. Res. 37/194, annex, 37 U.N. GAOR Sup. (No. 51) at 211, U.N.
Doc. A/37/51 (1982).

35 In Tyrer v. United Kingdom (supra note 21), the European Court pointed out that “admittedly,
the relevant legislation provides that in any event birching shall not take place later than six months after
the passing of sentence. However, this does not alter the fact that there had been an interval of several
weeks since the applicant's conviction by the juvenile court and a considerable delay in the police station
where the punishment was carried out. Accordingly, in addition to the physical pain he experienced, Mr.
Tyrer was subjected to the mental anguish of anticipating the violence he was to have inflicted on him”.

37 Cf. Case of Lori Berenson-Mejía, supra note 10, para. 102; Case of Tibi, supra note 16, para.
150; and Case of the “Juvenile Reeducation Institute”, Judgment of September 2, 2004, Series C No. 112,
para. 151. See also United Nations Minimum Rules for the Treatment of Prisoners. Adopted by the First
United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in
1955, and approved by the E.S.C. res. 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977,
Rules 10 and 11.

59. A.A. Cançado Trindade, "The Interpretation of the International Law of Human Rights by the Two Regional
Human Rights Courts, in Contemporary International Law Issues: Conflicts and Convergence (Proceedings of
the III Joint Conference ASIL/Asser Instituut, The Hague, July 1995), The Hague, Asser Instituut, 1996, pp.
157-162 and 166-167.

72. Cf. A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International
Law, Cambridge, University Press, 1983, pp. 1-443.

73. Namely, severe physical or mental suffering, intentionally inflicted, to obtain information or a confession,
with the consent or acquiescence of authorities or other persons acting in an official capacity.

75. In which, - it may be recalled, - the Hague Court endorsed the so-called Pan-American practice relating to
reservations to treaties, given its flexibility, and in search of a certain balance between the integrity of the text
of the treaty and the universality of participation in it; hence the criterion of the compatibility of the
reservations with the object and purpose of the treaties. Cf. ICJ Reports (1951) pp. 15-30; and cf., a contrario
sensu, the Joint Dissenting Opinion of Judges Guerrero, McNair, Read and Hsu Mo (pp. 31-48), as well as the
Dissenting Opinion of Judge Álvarez (pp. 49-55), for the difficulties generated by this criterion.

76. That is, the Vienna Convention on the Law of Treaties of 1969, and the Vienna Convention on the Law of
Treaties between States and International Organizations or between International Organizations of 1986, - to
which one may add, in the same sense, the Vienna Convention on Succession of States in the Matter of
Treaties of 1978 (Article 20).

77. Endorsed, e.g., by the American Convention on Human Rights (cross-reference of Article 75).

78. As neither the aforementioned Vienna Conventions, nor - prior to them - the cited Advisory Opinion of the
International Court of Justice on Reservations to the Convention against Genocide, define what constitutes the
compatibility or otherwise (of a reservation) with the object and purpose of a treaty, the etermination is left
to the interpretation of this latter, without it having been defined either on whom falls that determination, in
what way and when it should be made. At the time of the adoption of that Advisory Opinion (1951), neither
the majority of the Hague Court, nor the dissenting Judges on the occasion, foresaw the development of the
international supervision of human rights by the conventional organs of protection; hence the insufficiencies of
the solution then advanced, and endorsed years later by the two Vienna Conventions on the Law of Treaties
referred to.

79. There is a distinction between a reservation stricto sensu and a restriction in the instrument of acceptance
of the jurisdiction of an international supervisory organ, even though their legal effects are similar.

80. The Advisory Opinion of the ICJ on the Reservations to the Convention against Genocide (1951) marked
the gradual passage, in the matter of reservations to treaties, from the rule of unanimity (of its approval by
the States Parties), to the test of its compatibility with the object and purpose of the treaty. In a general way,
the Vienna Convention incorporated the flexible Pan-American doctrine on reservations, in accordance with a
tendency to this effect of the international practice already formed in the epoch; I.M. Sinclair, "Vienna
Conference on the Law of Treaties", 19 International and Comparative Law Quarterly (1970) pp. 47-69; and
cf. Articles 19-20 of the Vienna Convention.

82. Cf. U.N., Report of the International Law Commission on the Work of Its 50th Session (1998), General
Assembly Official Records - Supplement n. 10(A/53/10), pp. 195-214 ("Reservations to Treaties: Guide to
Practice").

83. Compiled by the Secretary-General of the United Nations and collected in the document: U.N.,
CCPR/C/2/Rev.4, of 24.08.1994, pp. 1-139 (English version), and pp. 1-160 (Spanish version).

84. For a study of the problems created by the reservations to these four human rights treaties of the United
Nations, cf. L. Lijnzaad, Reservations to U.N. Human Rights Treaties - Ratify and Ruin?, Dordrecht, Nijhoff,
1995, pp. 131-424.

88. In its third Advisory Opinion on Restrictions to the Death Penalty (1983) the Court warned that the
question of reciprocity as related to reservations did not fully apply vis-à-vis human rights treaties
(paragraphs 62-63 and 65). Earlier, in its second Advisory Opinion on the Effect of Reservations on the Entry
into Force of the American Convention (1982), the Court dismissed the postponement of the entry into force
of the American Convention by application of Article 20(4) of the 1969 Vienna Convention (paragraph 34).

89. To Article 1 of the [first] Optional Protocol to the Covenant on Civil and Political Rights.

90. Pertaining to pension benefits of more than 700 retired Senegalese members of the French army.

91. As the effects of the French legislation on the matter lasted until then.

96. Cf., in this line of reasoning, the Vienna Declaration and Programme of Action (1993), the main document
adopted by the II World Conference on Human Rights, part II, paragraph 5, and cf. part I, paragraph 26.

97. Cf. note (28), supra.

98. Possibility that came to be considered at the Vienna Conference which adopted the Convention of 1969.

99. System of the two-thirds of the States Parties, set forth in Article 20(2) of that Convention.

100. Such as drawn up in 1998 by the International Law Commission of the United Nations; cf. note (24),
supra.

101. Cf. A. Pellet (special rapporteur of the U.N. International Law Commission), Second Report on the Law and
Practice Relating to Reservations to Treaties (1997), paragraphs 164, 204, 206, 209, 227, 229 and 252.

102. U.N., Report of the International Law Commission on the Work of Its 49th Session (1997), General
Assembly Official Records - Supplement n. 10(A/52/10), p. 94, par. 47.

103. Ibid., p. 112, par. 107. In this respect, it was warned that States often and consciously formulate
reservations incompatible with the object and purpose of human rights treaties for knowing that they will not
be challenged, and that the lack of sanctions for such reservations thus leads States to become Parties to such
treaties without truly committing themselves; ibid., pp. 117-118, pars. 129-130.

114. As suggested in the aforementioned "Preliminary Conclusions" of 1997 (paragraph 7) of the International
Law Commission; cf. U.N., Report of the International Law Commission... (1997), op. cit. supra n. (46), pp.
126-127.

116. A.A. Cançado Trindade, "The International Law of Human Rights at the Dawn of the XXIst Century", op.
cit. supra n. (53), pp. 145-221.

117. Traditional considerations of reciprocity are also discarded when it comes to apply, e.g., the provisions of
the 1949 Geneva Conventions on International Humanitarian Law, such as those of common Article 3,
pertaining to conventional obligations of the State vis-à-vis persons under its jurisdiction; reciprocity here
yields of considerations of protection of a superior order.

125. In respect of the 1969 Vienna Convention on the Law of Treaties; cf. E. Schwelb, "The Law of Treaties and
Human Rights", in Toward World Order and Human Dignity - Essays in Honor of M.S. McDougal (eds. W.M.
Reisman and B.H. Weston), N.Y./London, Free Press, 1976, p. 265.

126. Sixth preambular paragraph in fine, texts reproduced respectively in: U.N., United Nations Conference on
the Law of Treaties - Official Records, Documents of the Conference (Vienna, 1968-1969), vol. III, N.Y., U.N.,
1971, p. 289; and in: U.N., United Nations Conference on the Law of Treaties between States and
International Organizations or between International Organizations - Official Records, Documents of the
Conference (Vienna, 1986), vol. II, N.Y., U.N., 1995, p. 95.

128. F. Matscher, "Methods of Interpretation of the Convention", in The European System for the Protection of
Human Rights (eds. R.St.J. MacDonald, F. Matscher and H. Petzold), Dordrecht, Nijhoff, 1993, pp. 66 and 73.

129. For a general study of non-appearance, cf. J.B. Elkind, Non-Appearance before the International Court of
Justice..., op. cit. infra n. (80), pp. 1-206; H.W.A. Thirlway, Non-Appearance before the International Court of
Justice, Cambridge, University Press, 1985, pp. 1-184.

130. On the practice on this particular point, mainly of the Inter-American Commission on Human Rights, cf. D.
Rodríguez Pinzón, "Presumption of Veracity, Non-Appearance, and Default in the Individual Complaint
Procedure of the Inter-American System on Human Rights", 25 Revista del Instituto Interamericano de
Derechos Humanos (1998) pp. 125-148.

133. Of whom I keep a good memory, in the meetings we had in Rio de Janeiro while he was a member of the
Inter-American Juridical Committee (IAJC), particularly of a panel we both participated in, together with Daniel
Bardonnet, in one of the annual Courses of International Law organized by the IAJC, precisely on peaceful
settlement of international disputes; the transcripts of that memorable panel were unfortunately never
published.

134. K. Highet, "Evidence, the Court and the Nicaragua Case", 81 American Journal of International Law (1987)
p. 56.

140. As illustrated by the regrettable and much-criticized "withdrawal" of the United States in the Nicaragua
case, which it eventually lost in the merits (in 1986) as well; cf. ibid., pp. 67 and 71-72.

141. I.D.I., 4th. Commission, rapporteur G. Arangio Ruiz.

142. Institut de Droit International, Resolution on Non-Appearance before the International Court of Justice, of
31.08.1991, preamble, 6th. considerandum.

148. For the extension of jus cogens to all possible juridical acts, cf., e.g., E. Suy, «The Concept of Jus Cogens
in Public International Law», in Papers and Proceedings of the Conference on International Law (Langonissi,
Greece, 03-08.04.1966), Geneva, C.E.I.P., 1967, pp. 17-77.

149. In its Judgment of 11 July 1996, in the case concerning the Application of the Convention against
Genocide, the International Court of Justice affirmed that the rights and obligations set forth in that
Convention were "rights and duties erga omnes"; ICJ Reports (1996) p. 616, par. 31.

152. Its formulation in the two Vienna Conventions on the Law of Treaties (1969 and 1986), Articles 53 and 64.

153. E.g., its recognition in the Articles on the Responsibility of States, adopted by the U.N. International Law
Commission in 2001.

154. Paragraph 29, and cf. also pars. 32-33 of my Separate Opinion.

155. Likewise, the Ad Hoc International Criminal Tribunal for the Former Yugoslavia, on its turn, held, in the A. Furundzija case (Judgment of 10.12.1998), that the absolute prohibition of torture has the character of a norm of jus cogens (pars. 137-139, 144 and 160).